UNIVERSITY 

OF  CALIFORNIA 

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REPORTS 


OF 


CASES  AEGUED  AND  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF  INDIANA. 

WITH  TABLES  OF  THE  CASES  AND  PRINCIPAL  MATTERS. 

BY  ISAAC  BLACKFORD,    A.   M. 

ONE  OF  THE  JUDGES  OF  THE  COURT. 


SECOND  EDITION. 
Annotated  by  Warwick  H.  Ripley,  Indianapolis. 

the  iaot-notes  refer  not  only  to  cases  wherein  similar  decisions  are  rendered,  but  also  to 
cases  wherein  the  same  principle  is  discussed  or  cited. 


VOL.  IL 

CONTAINING  THE  CASES  FROM  NOVEMBER  TERM,  1826, 
TO  MAY  TERM,  1831,  BOTH  INCLUSIVE. 


INDIANAPOLIS: 

THE  BOWEN-MERRILL  CO 

1890. 


30^5 


Entered  according  to  Act  of  Congress,  in  the  year  1880, 

By  MERRILL,  HUBBARD  &  CO. 

In  the  office  of  the  Librarian  of  Congress  at  Washington,  D.  C, 


CARLON  A  HOLLENBECK, 

PEINTEK8  AND  BINDFKS, 

INDIANAPOLIS.   IND, 


JUDGES 


OF    THE 


SUPREME  COURT  OF  JUDICATURE 


OF  THE 


STATE  OF  INDIANA, 

DUKING  THE  PERIOD  COMPRISED  IN  THIS  VOLUME. 


JAMES  SCOTT,  Esquire. 
JESSE  L.  HOLMAK,  Esquire. 
ISAAC  BLACKFORD,  Esquire.* 
STEPHEN  C.  STEVENS,  Esquire. J 
JOHN  T.  M'KINNEY,  Esquire.J 


*Ee-appointed  on  the  28th  of  January,  1831. 


1831 
expired, 


^^7705 


TABLE 


OF  THE 


NAMES  OF  THE  CASES 

EEPORTED  IN  THIS  VOLUME. 

[Reference  is  made  to  *  pages.] 


Abornv.  Burnett  et  al 101 

Adair,  Kimble  v 320 

Adams  et  al.,  Cooper  v 294 

Albertson,  The  State  v 251 

Alcorn  v.  Harmonson 235 

Allen  V.  Clark  et  al 343 

AUoway,  Holt  v 108 

Andrews,  Sheets  v 274 

Anthony,  King  v 131 

Armstrong,  Elliott  v 198 

Arnold  et  al.  v.  Styles  et  al 391 

B 

Barker  V.  M'Clure 14 

Barlow  v.  The  State 114 

Bates,  Berry  v 118 

Beach  et  al.,  M'Donald  et  al.  v..     55 

Benetield  et  al.,  Eaton  v 52 

Berry  v.  Bates 118 

Blackwell  v.  The  Board  of  Jus- 
tices of  L.  C 

Blaney  v.  Findley  et  al...._ 

Board' of  Commissioners  of  V.  C, 

Jaques  v 

Board  of  Commissioners  of  V.  C, 

Rawley  V 35o 

Board  of  Justices  of  L.  C,  Black- 
well  V 143 

Board  of  Justices  of  O.  C,  Gal- 

letly  V 221 

Board  of  Justices  of  V.  C,  Jus- 
tice V 1"^9 


Booker  v.  Bowles 90 

Bosley  v.  Farquar  et  al 61 

Bowles,  Booker  V 90 

Bowles  V.  Newby 364 

Brackenridge  v.  Holland  et  al...  377 

Brackenridge,  Porter  v 385 

Braman  et  al..  Peck  et  al.  v 141 

Breckenridge,  Gilly  v 100 

Brown,  Frakes  v 295 

Brown  v.  Wyncoop 230 

Bruner  et  al.  v.  Manville  et  al...  485 

Brush,  M'Glimmeryv 

Bryan,  Weaver  v 

Buckner,  Jamison  v ■ 

Burnett  et  al.,  Aborn  v 101 

Bussel,  Pugh  V 366 

Bussel,  Pugh  V 394 


143 
338 

403 


226 
172 

77 


Cappv.  Oilman 45 

Capp,  Pegg  et  al.  v 257 

Carson,  Lurton  v 464 

Chinn  v.  Russell ••   1^1 

Chinn  v.  Russell 1"- 

Chinn  et  al.  v.  Perry 268 

Clark,  Dukes  V 20 

Clark  et  al.,  Allen  v 34b 

Clark  V.Ellis ^ 

Clements,  Davis  v -^ 

Coles,  Wilson  v 402 

Colvert  et  al.,  Simonds  v 413 

Cone  v.  Cotton  et  al 8"- 

Conwell,  Evill  v 13^ 


Vlll 


TABLE  OF  CASES. 


Con  well,  Longworth  v 469 

Cooper  V.  Adams  et  al 294 

Cooper  et  al.,  The  State  v 226 

Cotton  et  al.,  Cone  v 82 

Coulter  et  al.,  O'Brien  et  al.  v...  421 

Cowgill  V.  Wooden 332 

Cox,  Cutler  v 178 

Crane  et  ux.  v.  Douglass 195 

Crane,  Reno  v 217 

Cravens,  Lindley  v 426 

Crawford  et  al.,  Harvey  v 43 

Culluni,  Jackson  d.  Taylor  v 228 

Cummins,  Gamble  et  al.  v 235 

Cupps  V.  Irvin 112 

Cutler  V.  Cox 178 

D 

Daggett  V.  Kobins 415 

Daniel  et  al.,  O'Brien  et  al.  v 290 

Davis  V.  Clements 3 

Davis,  Peggv 281 

Devers,  Test  v 80 

Dickerson  v.  Gray 230 

Dickson,  Kelsey 236 

Doe  d.  Brown  et  al.  v.  Owen 452 

Doe  d.  Harper,  Hob.son  v 308 

Doe  d.  Helm  v.  Newland  et  al...  233 
Doe  d.  Knapp  et  ux.  v.  Pattison 

et  al 355 

Doe  d.  Murphy,  Glass  v 293 

Doe  d.  Rapp,  Harrison  et  al.  v...  1 

Doe  d.  Sheets  v.  Roe  195 

Doe  d.  Wayman  v.  Naylor 32 

Doe  d.  Webster,  Rench  v 309 

Doe  d.  Wright,  Ricks  v 346 

Dougherty  v.  Humpston 273 

Douglass,  Crane  et  ux.  v 195 

Driskill,  M'Neely  V 259 

Duignan  et  al.,  Kelly  v 420 

Dukes  V.  Clark 20 

Durham  v.  Musselman 96 

E 

Eaton  V.  Benefield  et  al 52 

Elder  v.  Lasswell  et  al 349 

Elder,  M'Coy  et  al.  v 183 

Elderkin  v.  Shultz 345 

Elliott  V.  Armstrong 198 

Elliott  et  al.  V.  Ray 31 

Ellis,  Clark  v 8 

P^mmerson,  Wheeler  et  al.  v 293 

Evans  et  al.  v.  Shoemaker 237 

Evans  et  al.  v.  The  State 387 

Evill  v.  Conwell 133 


Farmers  and  Mechanics'  Bank  of 

Indiana,  John  et  al.  v 367 

Farquar  et  al.,  Bosley  v 61 

Farrar,  Miliary 219 


Ferguson  et  al.,  Sheets  v 257 

Ferguson  et  al.,  Sweny  et  al.  v...  129 

Ferguson,  Harrington  et  al.  v...  42 

Fike,  M'Creary  y 374 

Findleyet  al.,  Blaney  y 338 

Frakes  v.  Brown 295 

G 
Galletly  v.  The  Board  of  Justices 

of  O.C 221 

Gamble  et  al.  v.  Cummins 235 

Gilly  v.  Breckenridge 100 

Gilman,  Capp  v 45 

Givan,  Shewel  v 312 

Givan,  Sims  et  al.  y 461 

Glancey  et  al..  Kipper  et  al.  v...  356 

Glass  v.  Doe  d.  Murphy 293 

Glidewell  et  al.  v.  M'Gaughey...  359 

Gordon  v.  Spencer 286 

Governor,  Modisett  v 135 

Governor  y.  Shelby 26 

Governor,  Shelby  v 289 

Governor  v.  Stribling  et  al 24 

Governor,  Thomp.son  et  al.  v 142 

Graves  et  al.,  Jenison  et  al.  v 440 

Graves,  Ungles  v 191 

Gray,  Dickerson  v 230 

Gray.son,  Rappv 130 

Green  et  al.  v.  Vardiman  et  al...  324 

H 

Haganlan  v.  Stafford 351 

Hailstock,  The  State  v 257 

Hall  y.  Rogers 429 

Harding,  Wilson  v 241 

Harkness,  Riley  et  al.  v 34 

Harmonson,  Alcorn  v 235 

Harper  v.  Ragan  39 

Harrington  et  al.  v.  Ferguson  ...  42 

Harrington  v.  W^itherow 37 

Harris  v.  M'Faddin 71 

Harrison  et  al.  v.  Doe  d.  Rapp...  1 

Harvey  v.  Crawford  et  al 43 

Hawkins,  Johnson  y 459 

Hays  V.  M'Kee..... 11 

Hendricks,  Jamison  v 94 

Hicks  et  al..  The  State  v 336 

Hiday,  Wynn  et  al.  v 123 

Hoagland  et  al.  y.  Moore 167 

Hobson  v.  Doe  d.  Harper 308 

Holl)orn,    Louisville    and    Port- 
land Canal  Company  y 267 

Holford  v.  The  State..". 103 

Holland  et  al.,  Brackenridge  v..  377 

HoUowell,  Reno  et  al.  v 38 

Holt  y.  Alloway 108 

Hotfhkiss  V.  Lvon  et  al 222 

Howell  y.  Wilson 418 

Howk  v.  Kimball  et  al 309 

Hul)bard,  M'Clelland  v 361 

Humpston,  Dougherty  y 273 


TABLE  OF  CASES. 


I  ;  M'Clelland  V.  Hubbard 361 

^,n  '  M'Clure,  Barker  v 14 

11-  ;  M'Cory,  The  State  v 5 

•  M'Cov  et  al.  v.  Elder 183 

J  ,  M'Crackin,  Taylor  v 260 

Jackson  d.  Tavlor  v.  Cullum 228    M'Creary  v  Fike 374 

Tj.;^u„^^  77  1  M'CYearv.  Youse  V ^ 

55 


Irvin,  Cuppsv. 


Jamison  v.  Buckner 77  ,  M'.Creary,  Youse  V;..-.- ;_■•••■  •■;•••  243 


Jamison  v.  Hendricks 94    M  gonald  et  al.  y.  Beach  et  al 

Jaques  v.  The  Board  of  Commis-  ^i™*^r''  ^r'v\^  v...........-^...     /I 

sionersof  V.  C .-  403  j  M'Gaughey,  Glidewell  et  al.  v 

Jenison  et  al.  v.  Graves  et  al 440 

John  et  al.  v.  The  Farmers  and 


Mechanics'  Bank  of  Indiana.. 

Johnson  v.  Hawkins 

Johnson  et  al.,  Modisett  et  al.  v.. 

Jones  V.  The  State 

Justice  V.  The  Board  of  Justices 

of  V.  C 


K 


Kelly  V.  Duignan  et  al 


367 
459 
431 
475 

149 


420 


359 

M'Glimmery  V.  Brush 226 

M'Gruder  v.  Russell  18 

M'Kay,  Picquet  v 465 

M'Kee,  Havs  v H 

M'Neely  v.  Driskill 259 

Meek  v.  Ruffher 23 

Merrill,  Mitchell  et  al.  v 87 

Merriman  V.  Maple 350 

Millar  v.  Farrar 219 

Miller,  The  State  V 35 

Mills  et  al.  v.  Kuykendall 47 

Mitchell  et  al.  v.  Merrill 87 


Kelsey  v.  Dickson 236  i  ^^itchell  v.  Sheldon  et  al 185 


Kimball  et  al.,  Howk  v 309 

Kimble  v.  Adair 320 

King  V.  Anthony 131 

Kipper  et  al.  v.  Glancey  et  al  ...  356 

Kise  et  al.,  Patterson  v 127 

Knipev.  Knipe. 340 


Modisett  v.  The  Governor 135 

Modisett  et  al.  v.  Johnson  et  al..  431 

Modisett  v.  Lindley  et  al 119 

Mofifattet  al.,  Taylor  v 304 

Moffatt,  Taylor  V 305 

Moodv  et  al.,  Naylorv • 247 


Kuykendall,  Mills  et  al.  v 4/    j^jooj-e,  Hoagland  et  al.  v 167 

Moore  V.  Martindale 3.5.3 

L  j  Morris  et  al.  v.  Price 457 

Lambert  v.  Sandford 137  I  Mortsinger,  Scott  v 454 

LaS  V  Wilburn 343  i  Musselman,  Durham  v 96 

Lasswell  et  al.,  Elder  v 349  ^ 

Lavman,Whalen  V  194  ' 

Leavell  et  al..  Levelling  v 163  !  Naylor,  Doe  d.  Wayman  v 62. 

Lefavour  et  al.  v.  Yandeset  al...  240  ;  Naylor  v.  Moody  et  al 247 

Lefavour  et  al.,  Yandeset  al.  v.. .  371  i  Neighbors  v.  Simmons '5 

Lefavour,  Roberts  v 3-58    Xewby,  Bowles  v........... 364 

Levelling  v.  Leavell  et  al 163    Ne-vland  et  al.,  Doe  d.  Helmv...  166 

Lindlev  V.  Cravens 426    Nowland,  Maguire  v '6 


O 


223 


Oatman,  Wilson  v 

O'Brien  et  al.  v.  Coulter  et  al 421 

O'Brien  et  al.  v.  Daniel  et  al 290 

Owen,  Doe  d.  Brown  et  al.  v 452 

Owen  et  al,  Taylor  v 


301 


Lindley  et  al.,  Modisett  v 119 

Logan  V.  Siggerson 266 

Long  V.  Long 293 

Longworth  v.  Con  well 469 

Louisville  and    Portland  Canal 

Company  V.  Holborn 267 

Lurton  v.  Carson 464 

Lutz  et  al.  v.  Lutz 72 

Lyon  et  al.,  Hotchkiss  v 222  p 

^I  Parksv.  Perry '^f 

Maguire  v.  Nowland 76  j  Patterson  v.  Kise  et  al..^ ••  12/ 

ManviUe  et  al.,  Bruner  et  al.  v..  485  J  Pattison  et  al..  Doe  d.  Knapp  et  ^_ 

Maple,  Merriman  V ^'^"^  i  ^  "^' ^';;"",'V l'"i o\(\ 

Markle  et  al.  v.  Rapp  et  al 268    Payne,  ^^  ashburn  et  al.  v -i^ 

Marklev.  Steele .344    Pearce,  The  State  v 31b 

Martindale,  Moore  v...' 353    Peck  et  al.  v^  Braman  et  al 141 

Mathews  et  al..  Wright  v 187  |  Peden,  The  State  v d^l 

M'Clane  et  al.,  The  State  v 192  1  Pegg  et  al.  v.  Capp 


257 


TABLE  OF  CASES. 


Pegg  V.Davis 

Pence  et  al.  v.  Smock 

Pennybaker  v.  The  State. 
Perkins  et  al.  v.  Smith  ... 

Perry,  Chinn  et  al.  v 

Perry,  Parks  v 

Picqiiet  V.  M'Kay 

Polhird  v.  Rowland 

Porter  v.  Brackenridge  ... 

Price,  Morris  et  al.  v 

Pugh  v.  Bussel  

Pugh  v.  Bussel 


K 

Eaburn  v.  Shortridge 

Rackley,  The  State  v 

Ragan,  Harper  v 

Rankin  et  al.,  White  v 

Rapp  V.  Grayson 

Rapp  et  al.,  Markle  et  al.  V 

Rary,  Swan  v  

Rawley  v.  The  Board   of  Com- 
missioners of  V.  C 

Ray,  Elliott  et  al.  v 

Ray  et  al.  v.  Roe  d.  Brown 

Rench  v.  Doe  d.  Webster 

Reno  V.  Crane 

Reno  et  al.  v.  Hollowell 

Ricks  V.  Doe  d.  Wright 

Riley  et  al.  v  Harkness 

Roberts  v.  Lefavour...... 

Roberts,  Vattier  v 

Robins,  Daggett  v  

Roe  d.  Brown,  Ray  et  al,  v 

Roe,  Doe,  d.  Sheets  v 

Rogers,  Hall  v 

Rowland,  Pollard  v... 

Ruffner,  Meek  v 

Russell,  Chinn  v 

Rii'isel,  Chinn  v  ...» 

Russell,  M'Gruder  v 


281 
315 
484 
171 
268 

74 
465 

22 
385 
4.57 
366 
394 


480 
249 
39 
78 
130 
268 
291 

355 

31 

258 

309 

217 

38 

346 

34 

358 

255 

415 

258 

195 

429 

22 

23 

171 

172 

18 


Sackett  v.  AVilson 

Sanford,  Lambert  v.. 

Scott  V.  Mortsinger 

Server  v.  The  State 

Sheets  v.  Andrews 

Sheet.s  v.  Ferguson  et  al ...... 

Shelby  v.  The  Governor  

Shelby,  the  Governor  v 

Sheldon  et  al.  Mitchell  v 

.'^Iielmire  v.  Thompson  et  al. 

Shewel  v.  Givan 

Shoemaker,  Evans  et  al.  v.... 

Shortridge,  Raburn  v 

Sliultz,  Elderkin  v 

Siggerson,  Logan  v 

Simmon.s,  Neighbors  v 

Simond-  v.  Col  vert  et  al 


85 
137 
454 

35 
274 
257 
289 

26 
185 
270 
312 
237 
480 
345 
266 

75 
413 


Sims  et  al.  v.  Givan 461 

Smith,  Perkins  et  al,  v 171 

Smith  V.  Smith  et  al 232 

Smock,  Pence  et  al.  v.. 315 

Spencer,  Gordon  v .,  286 

Stafford,  Hagamnn  v 351 

Stafford,  The  State  v 412 

State  V.  Albertson 251 

State,  Barlow  v 114 

State  V.  Cooper  et  al 226 

State,  Evans  etalv 387 

State  V.  Hailstock 257 

State  V.  Hickset  al 336 

State,  Holford  v 103 

State,  Jones  v 475 

State  v.M'Claneetal 192 

State  V.  M'Corv 5 

State  V.  Miller 35 

State  V.  Pearce 318 

State  V.  Peden 371 

State,  Pennvbaker  V 484 

State  V.  Rackley 249 

State,  Server  v 35 

State' V.  Stafford 412 

State,  Stegars  v 104 

State  V.  Stucky 289 

State,  Townsend  v 151 

State,  Weathers  V 278 

Steele,  Markle  v 344 

Stegars  v.  The  State 104 

Stribling  et  al..  The  Governor  v..     24 

Stucky,  the  State  v 289 

Styles"et  al.,  Arnold  et  al.  v 391 

Swan  V.  Rary 291 

Sweny  et  al.  v.  Ferguson  et  al,..  129 

T 

Taylor  v.  M'Crackin 260 

Taylor  v.  Moffatt 305 

Taylor  v  Moffatt  et  al 304 

Taylor  v.  Owen  et  al 301 

Test  V.  Devers 80 

Thomasson  v.  Tucker's  Adminis- 
trators   172 

Thompson  et  al.  v.  The  Governor  142 
Thompson  et  al.,  Shelmire  v......  270 

Tolen  V.  Tolen .'..  407 

Townsend  v.  The  State 151 

Tucker's  Administrators,  Thom- 
a.«son  V •. 172 

U 

Ungles  V.  Graves 191 


V 


Vanblaricum  et  al.  v.  Yeo 322 

Vardiman  et  al.,  Green  et  al.  v  ..  324 
Vattier  v.  Roberts  255 


TABLE  OF  CASES. 


XI 


W 

"Washburn  et  al.  v.  Payne 216 

Weathers  v.  The  State 278 

Weaver  v.  Bryan •■••  1"2 

Whalen  v.  Layman 194 

Wheeler  et  al.  v.  Emmerson 293 

White  V.  Eankin  et  al 78 

Wilburn,  Larkin  v 343 

Wilson  V.  Coles 402 

Wilson  V.  Harding 241 

Wilson,  Howell  v 41 S 

Wilson  V.  Oatman 22o 


Wilson,  Sackett  V 85 

VVitherow,  Harrington  v 37 

Wooden,  Cowgill  v 332 

Wright  V.  Mathews  et  al 187 

Wyncoop,  Brown  v 230 

W^ynn  et  al.v.  Hiday 123 

Y 

Yandes  et  al.  v.  Lefavour  et  al..  371 
Yandes  et  al.,  Lefavour  et  al.  v..  240 

Yeo,  Vanblaricum  et  al.  v 322 

Youse  V.  M'Creary 243 


CASES 

ARGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE  OF  INDIANA, 


AT  INDIANAPOIilS,   NOVEMBER  TERM,    1826,  IN  THE  ELEVENTH  YEAR 
OF  THE   STATE. 


Harrison  and  Others  v.  Doe,  ou  the  Demise  of  Rapp. 

Judical  Sale — Appraisment. — The  real  estate  of  B.  was,  in  1823,  sold  on 
execution  under  a  judgment  recovered  against  him  by  A.  in  1822,  which 
judgment  had  not  been  replevied.  A,  the  execution-plaintiflF,  was  the 
purchaser  for  565  dollars.  The  property  sold  had  been  appraised,  under 
the  statute  of  1820,  at  4,640  dollars.  In  ejectment  by  A.  for  the  premises, 
it  was  held  that  no  bid  for  the  land  could  be  made,  under  the  statute  of 
1820,  for  less  than  2,320  dollars,  the  one-half  of  the  appraised  value;  and 
that  the  sheriff's  sale  therefore  for  565  dollars  was  void,  and  his  deed 
conveyed  no  title  to  the  purchaser  (a). 

Same — Notice — Execution-Plaintiff. — If  the  purchaser  of  real  estate  at 
sheriff's  sale  be  the  execution-plaintiff",  he  is  considered  a  purchaser  with 
full  notice,  and  accountable  for  all  irregularities  (6), 

ERROR  to  the  Knox  Circuit  Court. — Ejectment  by 
Doe  ou  the  demise  of  Rapp  against  Harrison,  Badollet, 
and  Buntiu,  for  a  house  and  lot  in  Vincennes.  Plea,  not 
guilt}'.     Verdict  and  judgment  for  the  plaintiff  below. 

(a)  See  8  Blkf.  575;  1  Ind.  24;  19  Id.  15  ;  27  Id.  450  ;  12  Id.  192. 
(6)  See  8  Blkf.  575 ;  59  Ind.  466. 

YOL    11.-1 


1-2  SUPREME  COURT  OF  INDIANA. 


Harrison  and  Others  v.  Doe,  on  the  Demise  of  Kapp. 


Scott,  J. — On  two  judgments  obtained  by  Frederick 
Rapp  against  the  bank  of  Vincennes  in  June,  1822,  exe- 
cutions of  fi.  fa.  were  issued  and  levied  on  the  premises 
in  controversy.  After  the  return  of  those  executions, 
writs  of  venditioni  exponas  w^ere  issued,  and  on  the  20th 
of  September,  1823,  the  property  was  sold,  and  Rapp  be- 
came the  purchaser  for  the  sum  of  565  dollnrs,  and  re- 
ceived the  sheriff's  deed.  By  the  statute  in  force  at  the 
time  of  this  sale,  it  was  provided  that  where  the  juda^- 
ment  had  not  been  replevied,  no  real  property 
[*2]  ^should  be  sold,  on  execution,  for  less  than  one- 
half  of  its  real  value,  Stat.  1820,  p.  4  (1).  The  judg- 
ment in  this  case  was  not  replevied,  the  property  was 
valued  according  to  the  provisions  of  the  statute,  and  the 
real  value,  thus  ascertained,  was  4,640  dollars.  Nothing 
less  than  2,320  dollars  was  a  legal  bid,  and  without  a 
legal  bid  there  could  be  no  legal  sale.  Any  sum  bid  for 
the  property  less  than  2,320  dollars  was  as  no  bid  at  all; 
and  in  that  case  the  sheriff  ought  to  have  returned,  that 
the  property  remained  unsold  for  want  of  buyers. 

How  far  a  stranger  to  the  title  of  the  execution-defend- 
ant, or  a  person  claiming  under  a  title  adverse  to  the 
title  of  the  bank,  could  take  advantage  of  this  circum- 
stance in  his  defence  in  an  action  of  ejectment;  or  how 
this  irregularity  would  affect  a  stranger,  purchasing  at 
the  execution-sale,  for  a  valuable  consideration,  without 
notice;  are  questions  not  within  the  case.  Here  the 
defendants  claimed  title  as  assignees,  and  privies  in  estate 
to  the  bank;  and  the  property  was  purchased  by  the 
execution-plaintiff,  who  must  be  considered  a  purchaser 
with  full  notice,  and  accountable  for  all  irregularities. 
Simons  v.  Catliji,  2  Gaines,  61 ;  Goodyer  v.  Jiince^  Yelv. 
179;  Parsons  v.  Loyd,  3  Wils.  341;  Bead  v.  Markle,  3 
Johns.  R.  525  ;  Lawrence  v.  Speed,  2  Bibb,  401 ;  Hayden 
V.  Dunlap,  3  Bibb,  216. 

The  sale  in  this  case  was  erroneous,  and  the  sheriff's 

i 

(2) 


KOVEMBER  TERM,  1826.  2-3 

Davis,  Assignee,  v.  Clements. 

deed,  made  in  pursuance  of  that  sale,  conveyed  no  title 
to  the  purchaser. 

On  this  ground,  and  without  examining  further  into 
the  merits  of  the  case,  tlie  judgment  is  erroneous  and 
must  be  reversed. 

Per  Curiam. — Tlie  judgment  is  reversed  with  costs. 
.    Judah,  for  the  plaintiiFs. 

Tabbs,  for  the  defendant. 

(1)  This  statute  is  repealed.  The  sheriff  now  first  offers  for  sale  the 
rents  and  profits  of  the  premises  for  seven  years  ;  and  if  they  will  not  sell 
for  a  sufficient  sum  to  satisfy  the  execution,  he  then  sells  the  fee-simple  to 
the  highest  bidder.  E.  C.  1831,  p.  235.  For  the  statute  law  of  the  difier- 
ent  states  on  this  subject,  vide  4  Kent's  Comm,  2d  ed.  428-438.  Vide, 
also,  as  to  the  lien  of  judgments  on  real  estate,  Ridge  v.  Prather,  Vol.  1.  ol 
these  Eep.  401,  404,  note  (2) ;  K.  C.  1831,  pp.  274,  275. 


[*3]  *  Davis,  Assignee,  v.  Clements. 

l^OTE — Failure  of  Consideration — Breach  of  Warranty. — Debt  by 
the  assignee  of  a  sealed  note  for  the  payment  of  money  against  the  maker. 
The  note  was  dated  on  the  10th  of  June,  1817,  and  payable  on  or  before 
the  1st  of  December,  1818.  Plea,  that  the  note  was  given  to  the  payee 
for  the  purchase  money  of  a  certain  tract  of  land  which  he  represented 
to  be  his,  and  for  which  he  was  to  make  a  title  to  the  defendant  when 
the  note  should  be  paid ;  that  the  payee  never  had  a  title  to  any  part  of 
the  land ;  and  that,  at  the  time  of  the  plea,  he  was  insolvent  and  had 
absconded  from  the  state.  Held,  that  the  plea  was,  under  the  statute,  a 
good  bar  to  the  action  (a). 

Same — Eight  of  AssiGNEE.-^Thetstatute  secures  to  the  obligor  the  same 
equitable  defence  in  an  action  by  the  assignee,  that  he  would  have  been 
entitled  to  had  the  action  been  by  the  obligee  (b). 

ERROR  to  the  Martin  Circuit  Court.— Debt  on  a  writ- 
ino;  obligatory  for  146  dollars  and  66  cents,  executed  by 
Clements  to  Harris,  and  assigned  by  the  latter  to  Oliver, 
and  by  Oliver  to  Davis.  The  obligation  is  dated  on  the 
10th  of  June,  1817,  and  is  payable  on  or  before  the  1st  of 

(a)  See  8  Blkf.  368;  6  Id.  59;  16  Ind.  132;  35  Id.  527.     (6)   Post  364. 

(3) 


3-4  SUPREME  COURT  OF  INDIANA. 


Davis,  Assignee,  r.  Clements. 


December,  1818.  Plea,  actio  non,  because,  &c.,  on  the  10th 
of  June,  1817,  Harris  represented  to  the  defendant  that 
he  owned  three  lots  of  land  in  Franklin  county,  and 
ottered  to  sell  them  to  him.  The  defendant,  accordingly, 
purchased  the  lots  of  Harris  for  the  sum  of  146  dollars 
and  66  cents;  and  then,  on  the  10th  of  June,  1817,  exe- 
cuted the  obligation  in  question  for  the  same.  Harris,  at 
the  same  time,  executed  his  bond  to  the  defendant,  con- 
ditioned for  the  making  of  a  good  title  in  fee-simple  for 
the  lots  to  the  defendant,  on  his  payment  of  the  purchase- 
money.  Harris  never  had  any  title  to  the  lots— they  being 
on  the  10th  of  June,  1817,  and  still  being  the  property  of 
Bates.  Harris  has  never  been  able  to  make  the  defendant 
a  title  for  the  lots.  He  is  insolvent,  and  has  absconded 
from  the  state.  Hence  the  defendant  was  defrauded  in 
the  purchase,  and  has  received  no  value  for  the  obliga- 
tion.    The  plea  concludes  with  a  verification. 

General  demurrer  to  the  plea,  and  judgment  for  the 
defpndaut. 

HoLMAN,  J. — Agreeably  to  the  case  of  Leonard  v.  Bates, 
May  term,  1822,  the  decision  of  the  Circuit  Court  in  this 
case  is  correct  (1).     The  demurrer  admits  the  facts  stated 

in  the  plea,  that  the  note  was  given  for  the  pur- 
[*4]     chase-money  for  *  the  land ;  and  that  Harris  never 

had  a  title  to  the  land,  and  could  make  no  convey- 
ance to  the  defendant.  These  facts,  alone,  show  that  the 
consideration  of  the  note  has  wholly  failed.  Although 
the  title  was  not  to  be  made  until  pajmient  of  the  money,- 
it  was  to  be  made  as  soon  as  the  mone_y  was  paid  ;  and 
the  defendant  was  not  bound  to  part  with  his  money,  un- 
til he  saw  not  only  a  disposition  but  an  ability  in  the  ven- 
dor to  make  the  title.  The  cases  cited  in  Leonard  v.  Bates 
support  this  position;  and  one  of  the  principal  reasons  of 
this  doctrine  is  given  by  Lord  Kenyon  in  Goodisson  v. 
Niuin,  4  T.  R.  761, — "  that  it  would  be  absurd  to  compel 
one  partv  to  a  compliance  on  his  part  without  a  compli- 

(4) 


NO\^EMBER  TERM,  1826.  4-5 

Davis,  Assignee,  v.  Clements. 

ance  on  the  other  part,  and  put  him  to  the  necessity  of 
having  recourse  to  the  other  for  non-comphance,  when 
tliat  other  might  be  insolvent."  But  this  case  grows 
stronger  by  the  consideration,  that  what  is  supposed  pos- 
sible in  other  cases,  is  reduced  to  a  certainty  in  this;  for 
it  is  a  fact,  admitted  by  the  demurrer,  that  Harris,  the 
vendor,  is  actually  insolvent,  and  has  absconded  from  the 
state.  Under  such  a  state  of  facts,  the  principles  of  com- 
mon honesty  would  entitle  the  defendant  to  the  most  lib^ 
era!  construction  of  the  foregoing  doctrine  in  his  favor,     i 

The  defendant  does  not,  as  the  plaintiff's  counsel  sup- 
poses, rest  this  case  as  to  the  impeachment  of  the  note  on 
the  ground  of  fraud,  as  he  must  have,  done  at  common 
law ;  but  he  rests  his  defence,  principally,  on  a  total  fail- 
ure of  consideration  under  our  act  of  assembly;  and  as 
there  has  been  a  total  failure  of  consideration,  he  is  au- 
thorized by  the  act  of  assembly  to  plead  it  (2). 

If  this  note  had  remained  in  the  hands  of  Harris,  and 
the  action  had  been  brought  by  him,  this  plea  would  have 
been  an  unquestionable  bar  to  the  action ;  and  the  act  of 
assembly  secures  to  the  obligor  the  same  equitable  defence 
against  the  assignee  that  he  would  have  had  against  the 
obligee ;  we  therefore  have  no  doubt  but  that  the  plea 
was  properly  sustained  (3). 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Tabbs,  for  the  plaintiff. 

Dewey  and  Kinney,  for  the  defendant. 

(1)  Vol.  I.  of  these  Rep.  172,  and  note  (2),  p.  176;  Muehmore  v.  Bates, 
Ibid.  248.  Where,  as  in  the  case  in  the  text,  the  payment  of  the  pnrchase- 
money  and  the  execution  of  the  deed  are  to  be  concurrent  acts,  a  suit  can 

not  be  sustained  for  the  money  until  the  vendor  has  executed  or  of- 
[*5]     fered  to  execute  the  title.     Ibid.     Nor  can  ■■•the  vendee  recover  for  a 

breach  of  the  contract,  in  such  a  case,  unless  he  has  paid  the  whole 
of  the  purchase-money  ;  Huntington  v.  Cohnan,  Ibid.  348  ;  Meriivether  v.  Carr, 
Ibid.  413;  and  unless  he  has  also  made  a  demand  of  the  deed.  Sheets  v. 
Andrews,  Nov.  term,  1829,  post. 

(2)  Leonard  v.  Bates,  cited  in  the  text,  and  note  (1)  ;  R.  C.  1831,  p.  405. 

(3)  The  statute,  after  making  notes  and  bonds  assignable,  enacts: — "that 


5  SUPREME  COURT  OF  INDIANA. 

The  State  v.  M'Coiy. 

such  assignee  or  assignees  shall  allow  all  just  set-offs,  discounts,  and  de- 
fence, not  only  against  himself^  but  against  the  assignor,  before  notice  of 
such  assignment  shall  have  been  given  to  the  defendant."  R.  C.  1824,  p. 
;«0 ;  E.  C.  1831,  p.  94. 


The  State  v.  M'Cory. 

A.SSAULT  AND  BATTERY — FoRMER  ACQUITTAL. — Indictment  for  an  assault 
and  battery.  Plea,  that  before  the  commencement  of  the  prosecution, 
the  defendant  had  been  arrested  on  the  warrant  of  a  justice  of  the  peace 
of  the  county  for  the  charge  set  forth  in  the  indictment;  and  that,  after 
a  full  examination  of  the  case,  the  justice  had  acquitted  him  of  the  of- 
fence. Held,  on  demurrer,  that  the  plea  was  a  good  bar  to  the  prosecu- 
tion (a). 

Same — Justice  of  Peace — Jurisdiction — Surety  of  Peace. — The  stat- 
ute, authorizing  justices  of  the  peace  to  punish  trivial  breaches  of  the 
peace  by  fine  not  exceeding  three  dollars,  is  not  unconstitutional ;  and  it 
is  discretionary  with  the  justice  whether  to  try  a  charge  of  a  breach  of 
the  peace  himself,  or  to  recognize  the  defendant  to  answer  the  same  at 
the  next  term  of  the  Circuit  Court. 

ERROR  to  the  Clark  Circuit  Court. 

HoLMAN,  J. — M'Cory  was  indicted  in  tlie  Clark  Circuit 
Court  for  an  assault  and  battery.  Plea,  that  before  the 
finding  of  the  bill  by  the  grand  jury,  and  before  the  com- 
mencement of  the  prosecution,  the  defendant  was  arrested 
by  virtue  of  a  warrant  from  a  justice  of  the  peace  of  said 
county,  on  a  charge  of  assault  and  battery,  being  a 
charge  of  a  trivial  breach  of  the  peace,  and  the  same 
charge  set  forth  in  the  indictment;  and  being  so  arrested, 
he  was  taken  before  John  Peyton,  Esquire,  a  justice  of 
the  peace  of  said  county,  and  put  upon  his  trial  for  said 
charge;  and  after  a  full  examination  of  the  case,  he  was 
by  the  said  justice  adjudged  not  guilty  of  the  offence,  and 
iinally  acquitted.  To  which  plea  the  attorney  for  the 
state  demurred ;  the  demurrer  was  overruled ;  and  the 
defendant  discharged. 

(a)  See  post  8,  251  ;  6  Ind.  9. 


NOVEMBER  TERM,  1826.  5-6 

The  State  v.  M'Cory. 

The  plaiutiif  contends  that  the  justice  had  no  jurisdic- 
tion of  the  case.  The  question  of  jurisdiction  de- 
[*6]  pends  on  the  *construction  of  the  second  section 
of  the  act  regulating  the  jurisdiction  and  duties  of 
justices  of  the  peace,  R.  C.  1824,  p.  236;  taken  in  con- 
nection witli  the  fifth  section  of  the  first  article  of  the 
constitution.  This  section  of  the  constitution  declares, 
that  "  in  all  criminal  cases,  except  in  petit  misdemeanors, 
which  shall  be  punished  by  fine  only  not  exceeding  three 
dollars,  in  such  manner  as  the  legislature  shall  prescribe 
by  law,  the  right  of  trial  by  jury  shall  remain  inviolate." 
By  the  act  of  assembly,  "it  shall  be  the  duty  of  the 
justice  of  the  peace  to  inquire  into,  and  in  a  summary 
way  to  punish,  by  fine  not  exceeding  three  dollars,  all 
trivial  breaches  of  the  peace;  and  judgment- give,  and 
execution  award;  and  when,  upon  examination,  it  shall 
appear  that  three  dollars  would  not  be  an  adequate  pun- 
ishment, it  shall  be  his  duty  to  recognize  such  oilender 
and  the  witnesses  to  the  next  Circuit  Court."  The  only 
difiiculty  on  this  subject  arises  from  the  vagueness  of  the 
terms,  ^^ petit  misdemeanors  and  trivial  breaches  of  the  peace.'* 
The  legislature  has  considered  these  expressions  as  syn- 
onymous, and  we  see  no  impropriety  in  it;  for  a  trivial 
breach  of  the  peace  is  but  a  a  petit  misdemeanor;  especially 
where  the  breach  of  the  peace  merits  no  higher  punish- 
ment than  three  dollars.  By  this  section  of  the  constitu- 
tion, those  minor  oflfences  which,  in  the  opinion  of  the 
legislature,  merit  no  higher  punishment  than  three  dol- 
lars, are  left  entirely  within  legislative  control ;  and  the 
legislature  has  determined  that  trivial  breaches  of  the 
peace  are  of  this  class;  and  has  therefore  placed  them 
within  the  jurisdiction  of  a  justice  of  the  peace. 

It  should  also  be  recollected,  that  this  clause  in  the 
constitution  is  expressly  intended  to  guard  individuals 
from  oppression,  by  securing  to  them  a  jury  trial  in  all 
cases  where  they  were  to  be  punished  by  a  fine  exceed- 
ing three  dollars.     It  is  not  intended  to  guaranty  to  the 

(7) 


6-7     SUPREME  COUKT  OF  INDIANA. 


The  State  v.  M'Cory. 


community,  that    every  oifence  should    receive  an    ade- 
quate punishment.     Under  this  provision,  an  individual 
might  object,  if  the  legislature  gave  a  justice  of  the  peace 
power  to  tine  him  more  than  three  dollars;  but  the  state 
could  not  complain  if  the  legislature  thus  placed,  under 
the  jurisdiction   of  a  justice,  otfences  which  should   be 
punished  by  a  higher  fine  than  three  dollars.     We  con- 
sider that  the  legislature  had  full  power  to   determine 
that  trivial  breaches  of  the  peace  were  but  j^etit  mis- 
[*7]      demeanors;  *and  to  place  them,  as  is  c.one  by  this 
act  of  assembly,  within  the  cognizance  of  a  justice 
of  the  peace.     :N"or  is  there  anything  in  this  clause  of  the 
constitution,  that   prevents  the    legislature  from  giving 
the  justice  of  the   peace  a  discretionary  jurisdiction  in 
cases  where  the  fine  was  not  fixed,  but  was  to  be  propor- 
tioned to  the  circumstances  of  the  case,  as  is  done  by  this 
act;  limiting  the  power  of  fining  to  three  dollars."  The 
constitution  does  not  require  that  the  legislature  should 
fix  the  amount  of  the  fine:  that  power  may  be  constitu- 
tionally delegated  to  the  justice  of  the  peace;  for  such  a 
discretionary  jurisdiction    can  not  oppress  the  ofiender, 
inasmuch  as  it  the  justice  of  the  peace  inflicts  the  punish- 
ment, it  can  not  exceed  three  dollars;    and  if  he  deter- 
mines that  three  dollars  is  not  an  adequate  punishment, 
and    recognizes    the    ofiender   to   the    Circuit    Court,  he 
would  then  be  in  the  same  situation  in  which  he  would 
have  been  if  the  justice  of  the  peace  had  had  no  power  to 
fine  in  any  case:  and  in  neither  case  can  the  state  com- 
plain that  the  constitution  is  violated. 

The  twelfth  sec.  of  the  first  art.  of  the  constitution 
does  not  reach  this  case.  That  section  declares,  that  "  no 
person  shall  be  put  to  answer  any  criminal  charge  but  by 
presentment,  indictment,  or  impeachment."  Eut  it  is  evi- 
dent  from  the  fifth  section,  that  the  framers  of  the  con- 
stitution did  not  consider  a  petit  misdemeanor  to  be  a 
criminal  charge.  It  should  be  further  considered,  that 
this  section  also  is  intended  to  oniard  individuals  against 

(8)  ^ 


NOVEMBER  TERM,  1826.  7-8 

The  State  v.  M'Cory. 

oppression;  and  the  character  of  tlie  act  under  consider- 
ation is  the  very  reverse  of  oppression.  We  question 
whether  a  single  individual  has  ever  been  heard  to  com- 
phiin,  that  his  constitutional  rights  have  been  infringed 
by  placing  the  determination  of  an  offence,  of  which  he 
has  been  charged,  within  the  jurisdiction  of  a  justice  • 
the  peace,  instead  of  giving  it  to  the  Circuit  Court  to  be 
tried  l)y  presentment  or  indictment. 

This  case  must  then  rest  on  the  construction  of  the  act 
of  assembly.  And  here  it  is  evident,  that  the  jurisdic- 
tion of  the  justice  of  the  peace  is  not  confined  to  cases 
where  the  fine  is  fixed,  and  is  never  to  exceed  three  dol- 
lars. His  jurisdiction,  unquestionably,  embraces  a  chtss 
of  cases  where  three  dollars  may  be  an  inadequate  pun- 
ishment. Of  this  character  are  assaults,  and  assaults  and 
batteries."  And  we  have  no  doubt  but  that  the  legislature 
intended  to  place  those  ofi:ences  within  his  discre- 
[*  8]  tionary  jurisdiction  ;  authorizing  him  to  hear  *and 
determine  them,  if  they  w^ere  of  a  trivial  nature; 
but  if  he  was  of  opinion,  that  a  fine  of  three  dollars  was 
an  inadequate  punishment,  he  was  to  transmit  them  to 
the  Circuit  Court.  There  are  many  assaults,  and  assaults 
and  batteries,  which  are  but  trivial  breaches  of  the  peace 
— but  petit  misdemeanors,  that  are  sufiiciently  punished 
by  a  fine  of  three  dollars;  these  are,  nnquestionably,  de- 
terminable by  the  justice  of  the  peace.  There  are  others 
of  an  aggravated  nature,  where  such  a  fine  would  be 
wholly  inadequate;  and  where  the  oftender  should  be  re- 
cognized to  the  Circuit  Court.  But  if  the  justice  exer- 
cises jurisdiction  in  those  cases,  and  inflicts  a  fine  not  ex- 
ceeding three  dollars,  Ave  know  not  how  his  judgment 
can  be  called  in  question  in  the  Circuit  Court.  Where 
the  justice  acquits,  as  in  this  case,  it  would  seem  that  the 
question  was  at  an  end  (1). 

The  motion  to  withdraw  the  demurrer  and  reply  to  the 
plea,  and  the  refusal  of  the  Court  to  grant  that  liberty, 
are  no  part  of  the  record. 

(9) 


8-9     SUPREME  COURT  OF  INDIANA. 

Clark  V.  Ellis. 

Per  Curiam. — The  judgment  is  affirmed. 
Kingsbury,  for  the  state. 
Howk,  for  the  defendant. 

(1)     "Vide  the  next  case — Clark  v.  EUi& — and  note  (1). 


Clark  v.  Ellis. 


Justice  of  the  Peace — Jurisdiction — Misdemeanors. — In  a  prosecution 
before  a  justice  of  the  peace  for  an  assault  and  battery  under  the  statute 
of  1818,  the  defendant  was  found  guilty  by  the  jury  and  fined  three  dol- 
lars. An  action  of  slander  was  afterwards  brought  for  words  charging 
the  plaintiff  with  having  sworn  false  on  that  trial;  and  the  words  were 
objected  to  as  not  being  actionable,  on  the  ground  that  the  justice  had 
no  jurisdiction.  Held,  that  though  the  statute  were  deemed  unconstitu- 
tional so  far  as  it  gave  the  justice  authority  to  inflict  a  fine  exceeding 
three  dollars ;  yet  when,  as  in  this  case,  the  fine  inflicted  did  not  exceed 
that  sum,  the  objection  was  untenable  (o). 

Constitutional  Law — Pro  tanto  Void. — A  statute  may  be  unconstitu- 
tional as  to  one  part  of  it,  and  valid  as  to  the  residue  (6). 

ERROR  to  the  Monroe  Circuit  Court. 

Holm  AN,  J. — A  trial  was  had  in  May,  1822,  in  a  prose- 
cution for  an  assault  and  battery,  before  a  justice  of  the 
peace,  under  the  act  regulating  the  jurisdiction  and  du- 
ties of  justices  of  the  peace,  approved  January  the 
[*  9]  28th,  1818.  On  that  *  trial  the  plaintiff  was  sworn 
as  a  witness  and  gave  evidence;  and  the  defend- 
ant, it  is  said,  charged  him  with  swearing  false  and  com- 
mitting perjury  in  his  evidence  so  given.  For  this  charge 
this  action  is  brought. 

There  were  special  demurrers  to  the  first  and  third 
counts  in  the  dechiration,  which  were  sustained  by  the 
Circuit  Court;  and  instructions  were  requested,  which 
were  in  substance,  "that  if  the  jury  found  that  the  de- 
famatory words  were  spoken  with  reference  to  a  swearing 

(a)  See  4  Ind.  264,  578. 

[b)  See  11  Ind.  482;  59  Id.  173,  179,  205  ;  58  Id.  88. 

(10) 


NOVEMBER  TERM,  1826.  9-10 

Clark  r.  Elli^^. 

Oil  said  trial,  they  should  find  for  the  plaintiff; "  which 
instructions  the  Court  refused  to  give.  A  verdict  was 
found  for  the  defendant,  and  judgment  was  accordingly 
given. 

There  are  a  variety  of  minor  questions  raised  in  the 
case — as  to  the  specifications  of  the  charge  in  the  declar- 
ation— the  technical  construction  of  the  testimony — and 
the  explaining  of  the  docket  of  the  justice  of  the  peace 
b}'  parol  evidence — all  of  which  we  deem  unimportant. 
The  cause  of  action  is  sutficiently  described ;  the  testi- 
mony comports  in  substance  with  the  character  of  the 
action;  and  the  testimony  relative  to  the  docket  of  the 
justice  of  the  peace  was  not  improper. 

The  whole  case  may  be  considered  as  resting  on  the 
constitutionality  of  the  act  of  assembly,  under  which  the 
Justice  of  the  peace  acted. 

This  act  of  assembly  authorizes  a  justice  of  the  peace 
to  impanel  a  jury,  and  to  try  cases  of  riots,  routs,  aftrays, 
breaches  of  the  peace,  &c. ;  and  to  fine  an  offender,  agree- 
ably to  the  verdict  of  a  jury,  not  exceeding  20  dollars. 
(1).  But  it  appears  from  the  record  in  this  case,  that  the 
trial  which  gave  rise  to  this  controversy,  resulted  in  a  fine 
against  the  offender  to  the  amount  of  three  dollars  only. 
Agreeably  to  the  decision  in  the  case  of  The  State  v. 
M'Cory,  at  this  term,  the  legislature  may  authorize  a  jus- 
tice of  the  peace  to  exercise  jurisdiction  over  cases  of  as- 
sault and  battery,  and  to  fine  the  ofi'ender  to  the  amount 
of  three  dollarsr  And  what  the  legislature  could  author- 
ize him  to  do  without  a  jur}',  they  could  certainly  author- 
ize him  to  do  with  a  jur}',  as  in  this  case.  So  that,  with- 
out entering  into  the  disputed  question  about  the  consti- 
tutionality of  that  part  of  the  justice's  jurisdiction,  which 
has  been  taken  away  by  the  legislature,  there  can  be  no 
question,  but  that  so  far  as  the  justice  of  the  peace  pro- 
ceeded in  the  trial  referred  to  in  this  action,  he 
[*  10]  was  within  *  tiie  jurisdiction  which  the  legislature 
had  constitutional  authoritv  to  give.  We  have 
(11) 


10  SUPREME  COURT  OF  INDIAI^A. 

Clark  V,  Ellis. 

heretofore  decided  that  a  part  of  an  act  of  assembly  be- 
ing unconstitutional,  does  not  affect  a  constitutional  part 
of  the  same  act  relative  to  the  same  subject.  That  part 
which  is  unconstitutional,  is  considered  as  if  stricken  out 
of  the  act;  and  if  enough  remains  to  be  intelligibly  acted 
upon,  it  is  considered  as  the  law  of  the  land.  If  this 
were  done  in  relation  to  this  act  of  assembly,  the  justice 
of  the  peace  would  still  retain  a  jurisdiction  in  cases  of 
assault  and  battery,  and  might  give  a  definite  sentence 
where  the  case  merited  a  fine  no  higher  than  three  dol- 
lars. We,  therefore,  consider  that  the  trial  under  consid- 
eration was  a  judicial  proceeding,  in  which  a  witness 
might  commit  perjury;  and  that  the  words  contained  in 
each  of  the  counts  in  the  declaration  are  actionable. 

The  special  demurrer,  and  the  instructions  required, 
turn  substantially  on  the  same  points;  the  demurrer 
should,  therefore,  have  been  overruled,  and  the  substance 
of  the  instructions  have  been  given  to  the  jury. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

Naylor,  for  the  plaintiff. 

Wick,  for  the  defendant. 

(1)  The  provision  in  the  act  of  1818,  referred  to  in  the  text,  was  repealed 
in  1823.  Stat.  1823,  p.  51.  The  provision,  substituted  by  the  act  of  1823 
for  the  one  repealed,  is  adopted  in  the  R.  C.  1824,  p.  236,  sec.  2.  The  pro- 
vision in  R.  C.  1824,  is  copied  and  commented  on  in  The  State  v.  M'Cory, 
the  case  next  preceding  the  one  to  which  this  note  is  annexed.  The  act 
now  in  force  is  as  follows:  "In  prosecutions  before  justices,  for  an  assault 
and  battery,  affray,  or  other  breach  of  the  peace,  the  defendant  shall  be 
tried  by  the  justice  alone,  demand  a  jury,  or  be  recognized  to  the  Circuit 
Court,  at  his  election.  If  the  defendant  be  found  guilty  before  the  justice. 
the  fine  shall  not  be  less  than  one  dollar  nor  more  than  20  dollars.  If,  on 
hearing  the  case  submitted  to  him,  the  justice  shall  be  of  opinion  that  it  is 
of  a  nature  so  aggravated  that  adequate  punishment  can  not  be  inflicted 
under  this  act,  he  shall  recognize  the  defendant  to  the  Circuit  Court."  R. 
C.  1831,  p.  294., 


(12) 


NOVEMBER  TERM,  1826.  11 


Havs  r.  M'Kee. 


[*11] 


*Hays   v.  MlvEE. 


Appearance— Jurisdiction— Waiver.— The  defendant,  by  pleading  to 
the  action,  waives  all  objection  on  account  of  the  want  of  process  (a). 

Eecord— Writ  and  the  Return.— Neither  the  capias  ad  respondendum, 
nor  tlie  sherifl''s  return  on  it,  can  be  noticed  by  this  Court,  unless  it  l)e 
made  a  part  of  the  record  in  some  way  known  to  the  law.  (b) 

Pleading— Similiter— Cured  by  Verdict.— The  addition  of  the  simili- 
ter is  only  a  matter  of  form,  and  the  want  of  it  is  aided  by  a  verdict 

ERROR  to  the  Franklin  Circuit  Court.— Trespass  by 
M'Kee  against  Hays  and  several  others,  for  breaking 
into  his  close  and  taking  away  his  goods.  Plea  of  justifi- 
cation. Replication  in  denial,  concluding  to  the  country. 
'No  similiter.  Verdict  of  guilty  against  Hays— damages 
149  dollars  and  20  cents;  and  of  not  guilty  as  to  the 
others.     Judgment  against  Hays  agreeably  to  the  verdict. 

Scott,  J.— The  plaintiff  in  error  alleges  that,  prior  to 
the  trial,  he  was  not  served  with  process,  nor  had  he 
appeared  to  the  action.  It  is  stated  in  the  record,  that 
at  the  October  term  in  the  year  1821,  the  parties  came  by 
their  attorneys,  and  the  defendants  were  ruled  to  plead; 
and  that  on  the  following  day  several  defendants,  of 
whom  the  plaintiff  in  error  was  one,  filed  their  pleas  pur- 
suant to  the  rule  of  Court.  By  this  statement  it  would 
seem  that  he  was  present  in  Court,  either  in  his  proper 
person  or  by  his  attorney,  and  pleaded  to  the  action ;  by 
which  he  waived  any  advantage  which  he  might  have 
taken  of  the  want  of  process  (1). 

It  seems  to  have  been  taken  for  granted,  that  this 
Court  would  notice  the  sheriff's  return  to  the  writ,  and 
see  that  it  was  not  served  on  Hays;  but  as  the  writ  and 
return  are  not  made  part  of  the  record  in  any  way  known 

(a)  See  59  Ind.  205  ;  43  Id.  357  ;  58  Id.  94;  37  Id.  300 ;  18  Id.  128  ;  46  Id. 
315;  27  Id.  323;  25  7c?.  376. 

(b)  See  24  Ind.  468  ;  26  Id.  287  ;  27  Id.  253  ;  36  Id.  490  ;  51  Id.  122 ;  9  Id. 
479. 

(13) 


11-12       SUPREME  COURT  OF  INDIAi^A. 

Hays  V.  M'Kee. 

to  the  law,  we  can  not  regard  them  as  evidence  of  that 
fact  (2). 

It  is  further  assigned  as  error  that  there  was  no  issue, 
tliere  being  no  similiter  added  to  the  replication.  It  was 
formerly  held  that  the  want  of  a  similiter  was  a  sub- 
stantial defect  and  could  not  be  aided  by  a  verdict;  but 
that  doctrine  has  been  overruled.  The  addition  of  the 
similiter  is  now  considered  matter  of  form,  and  the  want 
of  it  is  aided  after  verdict.  The  substance  of  the 
[*12]  issue  is  the  affirmative  *and  the  negative,  con- 
tained in  the  pleadings :  the  similiter  is  merely  an 
expression  of  the  willingness  of  the  party  to  submit  his 
case  to  a  jury.  Vide  1  Chitt.  571;  2  Saund.  319,  n.  6; 
Harvey  v.  Peake,  3  Burr.  1793  (3). 

Per  Curiam. — The  judgment  is  affirmed,  with  1  j9er 
cent,  damages  and  costs. 

Lane,  for  the  plaintiff. 

(1)  Vide  Leivis  v.  Breckenridge,  Vol,  1  of  these  Rep,  112. 

(2)  Vide  Shields  v.  Cunningham,  Vol.  1  of  these  E.ep.  86.  In  cases  of 
judgments  by  default  for  want  of  appearance,  the  writ,  with  the  indorse- 
ment, is  a  necessary  part  of  the  record.     Nadenbush  v.  Lane,  4  Rand.  413. 

(3)  The  tendering  of  an  issue  to  the  country  by  one  party,  viz.  the  prayer 
to  have  the  cause  tried  by  a  jury ;  and  the  acceptance  of  the  issue,  that  is, 
the  consent  of  the  opposite  party  to  have  the  cause  so  tried ;  was  a  mode  of 
proceeding  adopted  by  the  parties  in  England  at  an  early  period,  in  order 
to  have  certain  causes  tried  by  an  inquisition  of  twelve  men,  which,  without 
this  mutual  consent,  must  have  been  at  that  time  decided  by  ivager  of  battel. 
Steph.  on  Plead.  Appendix,  note,  34 ;  1  Reeves'  Eng.  Law,  334.  The  law 
has  been  long  since  changed ;  and  the  right  to  a  trial  of  questions  of  fact 
by  a  jury  no  longer  depends  upon  the  consent  of  the  parties.  If  an  issue 
to  the  country  be  properly  tendered  by  either  of  the  parties,  the  other  is 
compelled  to  accept  of  it.  The  party  tendering  the  issue  may  even  add  the 
similiter  him.self,  if  his  opponent  should  fail  to  do  it.  Hence  it  .appears, 
that  the  adding  of  the  similiter — the  mere  entry  of  the  party's  consent 
(which  he  can  not  refuse  to  give)  to  a  submission  of  the  cause  to  a  jury — is 
now  only  a  matter  of  form  ;  and  that  its  omission  is  aided  by  verdict.  It 
must  be  admitted,  however,  that  there  is  some  confusion  in  the  books  on 
this  subject.  Besides  the  authorities  cited  in  the  text,  vide  Steph.  on  Plead. 
254,  255;  Gould's  Plead.  313-316;  .Tared  \.  Ooodtitle,  Vol.  1  of  these  Rep. 
29,  and  the  cases  cited  in  note  (2^  ;  2  Arch.  Pr.  272,  273  ;  2  Tidd's  Pr,  8th 
Lond.  ed.  956. 

(14) 


NOVEMBER  TERM,  1826.  12-18 


Havs  V.  M'Kee. 


Having  had  occasion  in  this  note  to  mention  the  trial  by  wager  of  battel, 
the  reporter  will,  perhaps,  be  excused  for  adding  a  short  notice  of  a  pro- 
ceeding of  this  kind  which  recently  occurred  in  England  :— 

"  Inihe  year  1817  Mary  Ashford,  a  young  woman  residing  in  Warwick- 
shire,  was  murdered  under  circumstances  exciting  the  strongest  suspicion 
against  Abraham  Thornton,  who  had  been  her  companion  the  previous 
evening.     He  was  acquitted  on  his  trial  upon  evidence  of  an  alibi,  which 
apparently  covered  the  short  period  in  which  the  crime  was  perpetrated ; 
but  the  brother  of  the  deceased  was  advised  to  bring  his  writ  of  appeal,  and 
the  proceedings  thereon  in  the  Court  of  K.  B.  excited  the  greatest  interest 
in  the  public  mind.     The  accused,  when  brought  into  Court,  pleaded  as 
follows :—' Not  guilty,  and  I  am  ready  to  defend  the  same  by  my  body.' 
And  thereupon  taking  off  his  glove,  he  threw  it  upon  the  floor  of  the  Court. 
The  appellant,  after  taking  time,  counterpleaded,  setting  forth  all  the  facts 
tending  to  prove  the  guilt  of  the  appellee,  and  praying  that  he  might  not 
be  allowed  his  wager  of  battel ;  to  which  the  latter,  in  reply,  stated  the  evi- 
dence in  his  favor,  which  led  to  his  acquittal.     Upon  these  pleadings,  after 
an  elaborate  argument  by  counsel,  the  Court  held  that  there  was  not  suffi- 
cient on  the  face  of  the  proceedings  to  justify  them  in  refusing  the  battel ; 
but  whether  the  Court  should  allow  the  appellee  his  wager  of  battel,  or  to 
go  without  day,  they  did  not  then  determine ;   suggesting  to  the  ap- 
[*13]    pellant  *the  propriety  of  considering  whether  he  would  wish  any 
further  judgment  to  be  given.     A  few  days  after,  the  appellant  by 
his  counsel  stated,  that  he  prayed  no  further  judgment  of  the  Court,  where- 
upon the  Court  ordered  the  judgment  on  the  appeal  to  be  stayed,  and  the 
appellee  to  be  discharged.     See  the  case  at  length,  1  Bar.  &  Aid.  405. 

"  In  the  next  session  of  parliament  an  act  was  passed  to  abolish  appeals 
of  murder,  treason,  felony,  or  other  offences,  and  wager  of  battel,  or  joining 
issue  and  trial  by  battel  in  writs  of  right.    59  Geo.  3,  c.  46."    3  Chitt.  BI. 

337,  note  (6).  .     r  .i,- 

The  American  minister,  Mr.  Rush,  was  present  at  the  argument  of  this 
extraordinary  case.     The  following  are  his  remarks  :- 

"April  16  [1818,]  went  to  the  Court  of  King's  Bench  to  hear  the  argu- 
ment in  the  case  of  wager  of  battle.     The  parties  were  present. 

"  By  the  ancient  law  of  England,  when  a  person  was  murdered,  the  near- 
est relation  of  the  deceased  might  bring  what  was  called  an  appeal  of  death, 
against  the  party  accused  of  the  murder.  Under  this  proceeding  the  ac- 
cuser and  accused  fought.  The  weapons  were  clubs.  The  battle  began  at 
sunrise,  and  was  in  presence  of  the  judges;  by  whom  also  all  formalities 
were  arranged.  Part  of  the  oath  was,  that  neither  combatant  would  resort 
to  witchcraft.  If  the  accused  was  slain,  it  was  taken  as  a  proof  of  his  gm  t ; 
if  the  accuser,  of  his  innocence.  If  the  former  held  out  until  star-light, 
that  also  attested  his  innocence.  If  either  yielded  whilst  able  to  hght,  it 
worked  his  condemnation  and  disgrace.  Those  who  wish  a  full  description 
of  these  curious  proceedings,  may  seek  it  in  Sully,  or  continental  writers  o 
an  earlier  day,  as  Froisart ;  the  custom  having  been  imported  into  England 

(15) 


13-14       SUPREME  COURT  OF  INDIANA. 


Barker  v.  M'Clure. 


by  the  Normans.     The  foregoing  summary  will  give  a  general  idea  of  it. 

"It  was  a  mode  of  trial  for  dark  ages.  Ashford  the  appellor,  had  ac- 
cused Thornton  the  appellee,  of  the  murder  of  one  of  his  relations,  and  the 
latter  desired  to  fight.  In  the  highest  tribunal  of  the  most  enlightened 
country  in  Europe,  I  was  listening  to  a  discussion  whether  or  not  this  mode 
of  trial  was  in  force  in  the  nineteenth  century  !  It  was  difficult  to  persuade 
myself  of  the  reality  of  the  scene.  Mr.  Chitty,  a  lawyer  of  eminence,  ar- 
gued against  the  right  of  battle.  Mr.  Tindall  had  argued  on  the  other 
side,  on  a  former  day.  Fleta,  Bracton,  the  Year-Books,  and  other  reposito- 
ries of  ancient  law  were  ransacked.  Abundant  ability  was  displayed  on 
both  sides.  The  greatest  order  prevailed  ;  even  gravity.  The  judges  were 
in  their  robes.  About  seventy  lawyers  sat  in  front  of  them;  all  in  gowns 
and  wigs,  listening,  apparently,  with  profound  attention.  Finally,  the 
judges  decided  that  trial  by  battle  ^ms  in  force ;  for  it  had  never,  it  seems, 
been  repealed. 

"  In  the  end,  no  battle  was  fought.  A  technical  flaw  interposed  to  pre- 
vent it,  and  parliament  passed  a  repealing  statute.  But  the  case  marks  an 
incident  in  English  jurisprudence,  having  come  near  to  converting  the 
Court  of  King's  Bench  into  a  theatre  for  prize  fighting." — Bush's  Mem.  202, 


[*14]  *Barker  v.  M'Clure. 

Principal,  and  Surety — Judgment  Stay  —  Release  of  Surety. — The 
single  fact,  that  the  creditor  has  taken  a  judgment  by  confession  from 
the  principal  debtor  with  a  stay  of  execution  for  six  months,  can  not  be 
pleaded  by  the  surety  in  bar  of  an  action  against  him  by  the  creditor. 
The  plea  in  such  case,  to  be  valid,  must  also  show  that  the  creditor  could, 
by  the  ordinary  proceedings  at  law,  have  collected  the  money  sooner 
from  the  principal  debtor,  than  by  the  course  which  he  had  pursued ; 
and  that  the  time  was  given  to  the  principal  without  the  surety's  consent. 

NuL  TiEL  Record— Question  op  Law. — The  issue  on  nul  tiel  record  is  for 
the  Court,  not  for  the  jury,  to  decide  (a). 

Judgment — Practice— Finding. — Issues  on  three  pleas  in  bar  to  the  whole 
cause  of  action.  The  first  triable  by  the  Court ;  the  second  and  third  by 
a  jury.  The  second  and  third  were  tried  and  found  for  the  plaintiff. 
Held,  that  the  plaintiff"  could  not  have  judgment,  until  he  had  also  suc- 
ceeded on  the  first  issue  (6). 

APPEAL   from   the  Gibson  Circuit  Court.— Debt  by 
M'Clure  as^ainst   Barker  upon  a  writing  obligatory  for 

(a)  See  6  Blkf.  123 ;  7  Id.  272 ;  5  Id.  585.     (6)  See  17  Ind.  183. 

(16) 


NOVEMBER  TERM,  1826.  14-15 

Barker  v.  M'Clure. 

the  payment  of  200  dollars.  The  obligation  appeared, 
on  oyer,  to  be  joint  and  several,  and  to  have  been  exe- 
cuted by  Prince,  Sloan,  and  Barker,  Three  pleas:  first, 
a  former  recovery  against  all  the  obligors.  Replication 
to  this  plea,  that  M'Clure  did  not  recover  judgment 
against  the  three  obligors,  as  appears  by  the  record ;  and 
that  no  such  judgment  does  or  ever  did  exist;  and  this 
he  is  ready  to  verify.  Second  plea,  that  Sloan  and  Bar- 
ker were  sureties  for  Prince  in  the  obligation ;  that  after 
the  same  became  due.  Prince  and  Sloan  appeared  in 
Court,  and,  by  agreement  with  M'Clure,  confessed  judg- 
ment in  his  favor  for  the  amount  due  on  the  obligation, 
which  judgment  is  still  in  force;  and  that  M'Clure  gave 
Prince  the  further  time  of  six  months  within  which  to 
pay  the  judgment.  This  plea  was  demurred  to,  but,  .the 
Court  considering  it  good,  the  plaintiff  withdrew  his 
demurrer,  and  replied  denying  that  he  had  given  further 
time  for  payment  as  the  defendant  had  alleged.  Issue 
on  this  replication.  Third  plea,  payment.  Replication 
in  denial,  and  issue. 

Verdict  and  judgment  for  the  plaintiff  below. 

HoLMAN,  J. — A  bill  of  exceptions  shows,  that  the  de- 
fendant offered  parol  evidence  in  support  of  his  second 
plea, — that  the  plaintiff  did  give  further  time  for  pay- 
ment as  pleaded;  but  the  plaintiff  objected  to  the  evi- 
dence, on  the  ground  that  if  such  further  time  was 
[*15]  given  it  could  be  proved  *by  written  evidence 
only;  and  the  Court  sustained  the  objection,  and 
rejected  the  evidence  (1). 

The  rejection  of  this  evidence  is  the  most  prominent 
feature  in  the  case.  It  is  justified  by  the  defendant  in 
error,  on  the  ground  that  the  plea  is  no  bar  to  the  action. 
The  plea  can  not  be  supported.  We  have  seen  no  case 
where  the  single  fact  of  taking  a  judgment  of  the  prin- 
cipal, and  giving  a  stay  of  execution,  was  of  itself  a  re- 
lease of  the  surety,  either  in  law  or  equity.  The  doctrine 
Vol  II.— 2  (17) 


15-16         SUPREME  COUET  OF  im)IA::A. 

Barker  r.  M'C'lure. 

relied  on  from  1  Maddock,  234,  is  founded  on  Rees  v.  Ber- 
rington,  2  Yes.  Jr.  540.  That  case  is,  that  if  the  obligee 
iu  a  bond  takes  a  note  from  the  principal,  and  gives  far- 
ther time  for  payment,  without  the  surety's  knowledge, 
the  surety  is  released  in  equity.  It  is  also  laid  down  in 
the  same  case,  that  if  the  creditor  is  called  upon  by  the 
surety  to  sue  for  his  demand,  and  does  sue  and  get  judg- 
ment, but  gives  a  stay  of  execution  without  the  surety's 
knowledge,  the  surety  is  released.  This  is  the  strongest 
case  in  the  defendant's  favor  that  we  have  seen  in  the 
chancery  reports;  and  the  present  plea  falls  short  of  this 
case  in  two  important  particulars.  First,  this  judgment 
seems  to  have  been  confessed  without  any  previous  pro- 
cess; so  that  it  does  not  appear  but  that,  after  the  expir- 
ation of  the  six  months,  execution  might  have  issued  as 
soon  as  it  could  have  issued  if  there  had  been  no  agree- 
ment, and  the  regular  course  of  preparing  the  suit  for 
trial  had  been  pursued.  But  the  most  important  defect 
in  the  plea  is,  that  it  does  not  appear  that  the  further 
time  of  payment  was  given  without  the  knowledge  of 
Barker.  So  that,  even  in  equity,  where  sureties  are  chiefly 
recognized  and  peculiarly  favored.  Barker's  plea  would 
have  availed  him  nothing  (2).  But  chancery  is  the  proper 
tribunal  to  grant  relief  in  those  cases,  for  there  the  par- 
ticular circumstances  of  each  case  can  be  set  forth.  This 
may  sometimes  be  done  in  equitable  actions  at  law;  but 
the  general  principles  of  common  law,  relative  to  writings 
obligatory,  know  nothing  of  sureties. 

An  act  of  assembly  has  provided  a  method  to  be  pur- 
sued by  sureties,  who  are  apprehensive  of  danger  by  the 
delay  of  the  creditor,  but  it  is  not  pretended  that  Barker 
has  pursued  that  method. 

The  plea  is,  therefore,  no  bar  to  the  action ;   and  the 
issue  formed  upon  it  is  immaterial.     If  that  issue  had 
been  found  for  the  defendant,  a  repleader  should 
[*1G]    have  been   awarded.     '''The  rejection   of  the  evi- 
dence was,  therefore,  no  injury  to  the  defendant, 
(18) 


NOVEMBER  TERM,  1826.  16 

Barker  v.  M'Clure. 

inasmuch  as  the  proving  of  the  plea  could  have  legally 
availed  him  nothing. 

The  replication  to  the  lirst  plea  is  informal.  It  is  not 
a  regular  nul  tiel  record.  But  the  existence  of  a  judg- 
ment on  record,  in  favor  of  M'Clure  against  Prince,  Sloan 
and  Barker,  is  substantially  put  in  issue  by  it.  This  issue 
has  not  been  determined.  The  record  says,  the  jury 
"  were  ivell  and  truly  sworn  to  try,  ^c."  What  the  clerk  in- 
tended to  include  under  the  "I'c.,"  is  left  to  conjecture; 
and  we  hope  that  it  is  the  last  time  so  important  a  feature 
in  the  record  shall  be  left  to  conjecture.  But  taking  this 
as  it  is,  and  striking  out  the  "&c.,"  and  inserting  the  word 
"issues,"  it  can  not  be  contended  that  the  jury  were 
sworn  to  try  any  issues  but  those  that  were  proper  for  a 
jury  to  try.  The  first  issue,  depending  on  matter  of  rec. 
ord,  could  not  be  supposed  to  be  before  the  jury.  That 
was  to  be  determined  by  the  Court,  on  inspecting  the  rec- 
ord, if  any  was  produced.  The  verdict  of  the  jury  is  a 
finding  for  the  plaintiff  generally,  and  determined  onl}i 
the  second  and  third  issues:  and  the  judgment  of  the 
Court  is  upon  the  verdict  of  the  jury,  and  has  no  refer- 
ence whatever  to  the  first  issue.  It  remains  undetermined, 
and  final  judgment  should  not  have  been  given,  until  the 
Court  had  determined  whether  there  was  or  was  not  such 
a  record,  as  the  defendant  had  alleged  in  his  first  plea. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Hall,  for  the  appellant. 
Tabbs,  for  the  appellee. 

(1)  The  Court  can  only  look  to  the  judgment  itself  for  the  terms  under 
which  it  was  confessed.  If  the  agreement  to  stay  execution  be  not  entered 
of  record,  but  exist  merely  by  parol,  it  can  not  avail  against  the  record. 

To  an  action  on  a  recognizance  of  bail,  the  defendant  pleaded  that,  with- 
out his  privity,  the  plaintiff  had  agreed  to  take  security  from  the  princi- 
pal. This  plea,  on  demurrer,  was  held  to  be  insufficient  at  law,  on  the 
ground  that  an  agreement  by  parol  can  not  be  pleaded  in  bar  of  an  obliga- 
tion by  record.     Bulteel  v.  JarroM,  8  Pri.  467. 

Vide,  also,  the  cases  of  Davey  v.  Prendergrass  and   The   United  States  v. 

(19) 


ie-17       SUPREME  COURT  OF  IXDIAN'A. 

Barker  v.  M'Clure. 

Hmvell,  referred  to  in  note  (2)  to  Braman  v.  Howk,  Vol.  1  of  these  Rep.  394. 

(2)  In  an  action  by  the  indorsee  against  the  indorser  of  a  bill,  it  was 
held  that  the  defendant  was  not  discharged  by  the  plaintifT's  having  taken 
from  the  acceptor  a  cognovit  giving  three  weeks'  time,  which  was  a  period 
short  of  that  time  in  which  judgment  could  have  been  obtained  against 

him.  Jay  v.  Warren,  1  Carr  &  Payne,  532. 
[*17]  *A  motion  was  made  for  an  injunction  to  restrain  the  defendant, 
the  administrator  of  A.,  from  proceeding  at  law  against  the  plain- 
tiff, on  a  bond  given  to  the  intestate  by  B.  and  the  plaintiff  as  his  surety. 
The  facts  on  which  this  motion  was  founded  were,  that  in  June,  1817,  A. 
sued  B.  on  the  bond,  and  in  the  same  month  took  a  cognovit  from  him  for 
the  debt,  with  a  stipulation  that  judgment  vshould  not  be  entered  up,  nor 
execution  issued,  until  the  1st  of  August  following.  This  proceeding,  it 
was  contended,  was  a  giving  of  time  to  the  principal,  which  discharged  the 
surety.  Per  the  Vice  Chancellor. — "The  principle  of  discharging  a  surety 
by  the  giving  of  time  by  the  creditor,  is  a  refinement  of  a  Court  of  equity; 
and  I  will  not  refine  upon  it.  By  the  arrangement  complained  of,  time 
was  not  given,  but  the  remedy  was  accelerated."  Hulme  v.  Coles,  2  Si- 
mons, 12. 

On  the  12th  of  February,  pending  a  suit  in  which  special  bail  had  justi- 
fied, the  defendant  gave  a  cognovit  for  the  payment  of  the  debt  by  three  in- 
stalments ;  the  first  payable  on  the  26th  of  February  instant ;  the  others 
within  two  or  three  months  afterwards,  with  a  stay  of  execution  until  de- 
fault. The  first  instalment  not  being  paid,  the  plaintiff  signed  judgment 
on  the  27th  of  the  same  month  of  February.  Part  of  the  money  was  made 
on  a  fi.  fa.  A  ca.  sa.  was  issued  for  the  residue,  and  returned  non  est  in- 
ventus. Debt  was  then  brought  against  the  bail  on  the  recognizance;  and 
they  moved  to  set  aside  the  proceedings  against  them.  The  ground  of  the 
motion  was,  that  the  bail  were  discharged  by  the  cognovit.  Per  Tenterden, 
C.J. — "We  are  clearly  of  opinion,  that  bail  are  not  discharged  by  the 
plaintiff's  taking  a  cognovit  from  their  principal  without  their  consent  or 
knowledge,  unless,  by  the  terms  of  the  cognovit,  he  is  to  have  a  longer  time 
for  the  payment  of  the  debt  and  costs  than  he  would  have  it  the  plaintiff 
had  proceeded  regularly  in  the  action."  Stevenson  v.  Roche,  9  Barn.  & 
Cress.  707. 

There  is  a  still  later  case  to  the  same  effect ;  in  which  Bayley,  J.,  says — 
"It  is  a  well  established  rule  that  a  cognovit  by  the  principal,  without  no- 
tice to  the  bail,  does  not  discharge  them,  unless  time  be  given.'to  the  former 
beyond  that  in  which  the  plaintiff  would  have  been  entitled  to  judgment 
and  execution,  had  he  gone  to  trial  in  the  original  cause."  Price  v.  Ed- 
munds, 10  Barn.  &  Cress.  578. 

A  surety,  having  been  applied  to  by  the  solicitors  of  the  creditor  for  pay- 
ment, told  the  principal  to  see  the  solicitors  and  do  the  best  he  could  with 
them.  The  principal,  accordingly,  went  to  the  solicitors  and  made  an  ar- 
rangement with  them  for  further  credit.  The  surety  contended  that  this 
arrangement  discharged  him.     But  the  chancellor  held,  that,  as  the  ar- 

(20) 


NOVEMBER  TERM,  1826.  17-18 

M'Gruder  v.  Russell,  Sheriff,  &c. 


raiigement  was  made  under  the  surety's  authority,  he  could  not  be  relieved. 
Tvson  V.  Cox,  1  Turner,  C.  C.  395. 

It  appeared  that  the  holder  of  a  bill,  of  which  payment  had  been  refused, 
informed  the  drawer  of  his  intention  to  take  from  the  acceptor  security  for 
payment  by  instalments,  and  the  drawer  answered  that  the  holder  migh 
do"  as  he  liked,  for  he  was  discharged  already  in  consequence  of  the  want 
of  notice;  when  in  fact  he  was  not  discharged-due  notice  having  been 
eiven  Held,  that  the  drawer  was  not  discharged  by  the  plaintiff  s  giving 
time  under  those  circumstances,  to  the  acceptor;  because  his  answer  was 
thought  to  amount  to  an  assent  to  the  plaintiff's  taking  the  warrant  of  at- 
torney from  the  acceptor.     Clarke  v.  Devlin,  3  Bos.  &  Pul.  363. 

Vide,  also,  as  to  the  effect  of  giving  time  to  the  principal  without  the 
surety's  consent.  Theobald  on  Prin.  and  Sur.  127-129  ;  Note  (2)  to  Braman 
V.  Howk,  Vol.  1  of  these  Eep.  394. 


r*l8]  *M'Gruder  v.  Russell,  Sheriff,  &c. 

Escape-Shekiff  of  Supreme  Court.-A  ca.  sa.  on  a  replevin-bond  in 
the  Supreme  Court,  was,  by  the  sheriff  thereof  to  whom  it  was  directed, 
sent  to  the.  sheriff  of  Jackson  county,  where  the  execution-defendant  re- 
sided The  sheriff  of  that  county  arrested  the  defendant,  and  afterwards 
suffered  him  to  escape.  Held,  thai,  under  the  statute,  the  sheriff  of  the 
Supreme  Court  was  not  liable  for  the  escape. 
SAME-EEMOVAl..-The  sheriff  of  Jackson  county,  after  the  escape,  retook 
the  defendant  in  that  county,  and  brought  him  to  the  ^^-t;^^  S^^^^"*' 
where  the  Supreme  Court  sits.  Held,  that  the  removal  of  the  defendant 
out  of  the  county  in  which  he  was  arrested  was  an  escape. 
Sheriff  of  Supreme  Court-Service  BV-PRACTicE.-The  process  of  the 
sT'eme  Court  is,  by  statute,  directed  to  the  sheriff  of  fat  ^of '-h^^ 
he  same  Lnd  forwards  it,  with  his  mandate,  to  the  sheriff  of  the 
which  it  is  to  be  executed.     The  sheriff  of  the  proper  county 


!  <^ouri  is,  "J  ijicivu^^, •£!<     s  iV. 

receives  the  same  and  forwards  it,  with  his  mandate,  to  the  *enff  of  the 

'ZZ  LrXrtrthe  I^^^JO.  supreme  C^ur,  and  the  latter  re- 


m 


SAMrNV^LilBS^FOR  ACS  OF  Cou.xv  SHEKXFF.-The  general  doctrine 
Tthat  a  sheriff  is  liable  for  the  acts  of  his  deputy      But  as  the  au  hor- 
it^  of  the  sheriffs  of  the  several  counties  to  execute  the  process  of  the  Su 
preme  Court,  is  neither  conferred  by  the  sheriff  of  that  Court,  nor  si^ject 
io  be  revoked  or  abridged  by  him-he  is  not  liable  for  their  conduct. 

ERROR  to  the  Marion  Circuit  Court. 

Blackford,  J.-Debt  by  M'Gruder  against  Russell, 
sheriff  of  Marion  county,  for  an  escape.  Plea,  mi  debet. 
Special  verdict  to  the  following  effect:— 

(21) 


18-19       SUPREME  COURT  OF  INDIA:N'A. 

M'Gruder  v  Kussell,  Sheriff,  Ac. 

M'Gruder,  at  the  May  term,  1821,  of  the  Supreme 
Court,  recovered  judgment  against  Tate,  and  took  out  an 
execution  of  fieri  facias.  Replevin-bond  by  Tate  with 
Craio-  as  surety.  Ca.  sa.  directed  to  Russell,  sheriiF  of 
Marion  county,  against  Tate  alone,  upon  the  replevin- 
bond;  Craig  having  died  since  its  execution.  Russell 
sent  the  ca.  sa.  to  Stanly,  sheriff  of  Jackson  county, 
where  Tate  resided.  Stanly  arrested  Tate  in  October, 
1825,  and  sufi'ered  him  to  go  at  large  until  the  November 
following,  when  Elliott,  acting  for  Stanly,  again  arrested 
Tate  on  the  ca.  sa.  and  conveyed  him  to  Indianapolis, 
and  offered  to  deliver  him  to  Russell.  Russell  refused  to 
receive  him ;  and,  upon  a  writ  of  habeas  corpus,  he  was 
finally  discharged.  Upon  these  facts,  if  the  law  is  in 
favor  of  the  plaintift',  the  jury  find  for  him  738  dollars 
and  13  cents  debt,  and  158  dollars  and  46  cents  damages; 
otherwise  they  find  for  the  defendant. 

The  Circuit  Court  gave  judgment,  upon  the  verdict,  in 

1  favor  of  the  defendant. 

[*19]  *With  respect  to  the  fact  of  an  escape  in  this 
case,  there  is  no  doubt  about  that.  It  is  expressly 
found  by  the  jury,  that  an  escape  had  been  sufiered, 
before  the  execution-debtor  had  been  taken  from  the 
county  of  Jackson.  But  had  it  been  otherwise,  the  re-  ■ 
nioval  of  the  party  out  of  the  county  in  which  he  was 
arrested,  was  itself  an  escape.  It  was  like  the  case  of  a 
bailiff"  of  a  liberty,  taking  the  party  out  of  the  liberty  to 
the  county  gaol,  and  delivering  him  to  the  sheriff',  which 
has  been  adjudged  an  escape.     Boothman  v.  Earl  of  Surry, 

2  T.  R.  5. 

The  only  question  which  the  case  presents,  is,  whether 
an  action  for  this  escape  can  be  maintained  against  Rus- 
sell, the  sheriff*  of  Marion  county?  If  Russell  is  the  prin- 
cipal sheriff  for  the  state,  as  respects  the  process  of  the 
Supreme  Court,  and  the  sheriffs  of  the  different  counties 
are  merely  his  deputies;  and  if  the  decision  of  the  case  is 

(22) 


NOVEMBER  TERM,  1826.  19-20 

M'Gruder  v.  Russell,  Sheriff,  &c. 

to  rest  strictly  upon  the  -common-law  doctrine  of  prin- 
cipal and  agent ;  no  doubt  can  exist  but  that  for  the 
escape  suffered  by  Stanly,  Russell  alone  is  responsible  to 
the  plaintiff.  Cameron  \.  Reynolds,  Cowp.  403.  By  the 
statute  of  1824,  p.  129,  which  governs  this  case,  the 
sheriff"  of  the  county  where  the  seat  of  the  state  govern- 
ment is  located,  is  to  act  as  sheriff  of  the  Supreme  Court, 
and  the  sheriffs  of  the  several  counties  are  to  act  as  his 
deputies,  and  are  responsible  to  him  (1).  It  must  be 
remarked,  that  the  authority  of  the  sheriffs  of  the  re- 
spective counties,  is  not  conferred  by  the  sheriff'  of  the 
Supreme  Court;  nor  can  such  authority  when  conferred, 
be  revoked  or  abridged  by  him.  They  are  elected  by 
the  people  at  stated  periods,  and  act  in  their  own  names, 
as  independent  officers  of  their  respective  counties,  not  in 
the  name  of  the  sheriff  of  the  Supreme  Court  in  any  case 
whatever.  Under  these  circumstances,  the  sheriff  of  the 
Supreme  Court  can  not,  in  our  opinion,  be  liable  for  the 
conduct  of  the  other  sheriff's  in  the  different  counties, 
unless  made  so  by  the  express  words  of  the  act  of  as- 
sembly. There  is  certainly  no  such  direct  statutory  pro- 
vision: it  would  be  very  unreasonable  if  there  were. 

The  law  of  the  state,  upon  the  subject  before  us,  we 
conceive  to  be  this.  The  process  of  the  Supreme  Court 
is  directed   by  the  clerk,  to  the  sheriff  of  the  Supreme 

Court.  He  receives  and  forwards  it,  with  his  man- 
[*20]    date,  to  the  sheriff'  of  the  *county  where  it  is  to  be 

executed.  The  sheriff  of  the  proper  county  makes 
his  return  to  the  sheriff  of  the  Supreme  Court,  from  whom 
he  received  it;  and  the  latter  returns  it- to  the  Supreme 
Court,  from  whence  it  issued.  The  practice,  in  this  re- 
spect, may  be  assimilated  to  that  which  prevails  in  an 
English  county,  where  there  is  a  bailiff' of  a  liberty.  The 
w^rit  is  directed  to  the  sheriff";  he  makes  out  his  mandate 
to  the  bailiff  of  the  liberty;  the  bailiff  executes  it  and 
makes  his  return  to  the  sheriff;  and  the  sheriff"  returns  it 
to  his  Court.     If  the  writ  be  a  ca.  sa.,  the  bailiff"  must 

(23) 


20-21       SEPREME  COURT  OF  IIs^DIAXA. 

Dukes  V.  Clark. 

confine  the  party  in  the  gaol  of  the  liberty ;  and  should  he 
suffer  him  to  escape,  an  action  lies  against  the  bailiff,  but 
not  against  the  sheriff.  2  Bac.  519.  When  the  sheriff  has 
nothing  to  do  with  the-  choice  of  the  bailiff  or  his  sureties, 
he  can  not,  upon  any  principle  of  the  common  law,  be 
made  responsible  for  his  acts ;  nor  can  he  be  considered 
so  liable,  by  virtue  of  any  statutory  provision,  where 
there  are  no  express  words  to  that  effect. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Dewey  and  Howk,  for  the  plaintiff. 

Fletcher,  Rariden  and  Nelson,  for  the  defendant. 

(1)  This  statute  is  repealed.  The  sheriff  of  the  Supreme  Court  is  now 
appointed  by  the  Court  for  the  term  of  three  years.  He  appoints  his  dep- 
uties in  different  parts  of  the  state,  and  is  expressly  made  responsible  for 
their  acts.    Stat.  1833,  p.  47. 


Dukes  v.  Clark. 


Slander — Incest — Charge  of  Fornication  -with  Wife's  Sister. — Slan- 
der for  charging  a  man  with  illicit  intercourse  with  his  wife's  sister. 
Held,  that  the  words  did  not  contain  "a  charge  of  incest,  but  only  of  forni- 
cation or  adultery.  Held,  also,  that  as,  at  the  time  of  speaking  the  words, 
neither  fornication  nor  adultery  was  an  indictable  offence,  the  words 
were  not  actionable. 

ERROR  to  the  Monroe  Circuit  Court. 
Scott,  J. — Clark  filed  his  declaration  in  the  Circuit 
Court,  in  which  he  charged  Dukes  with  having  spoken 
of  him  certain  slanderous  words,  which,  as  he  alleges, 
import  a  charge  of  incest.  Plea,  not  guilty;  verdict  and 
judgment  for  the  plaintiff. 

On  an  inspection  of  the  declaration,  we  find  that  the 

words,  as  laid,  strongly  imply  a  charge  against  Clark  of 

an  illicit  intercourse  with  his  sister-in-law.     Such; 

[*21]    an  intercouse,  however,  *  is   not  incestuous;    and 

there  are  no  words  laid  in  the  declaration,  which 

(24) 


NOVEMBER  TERM,  1826.  21 

Dukes  V.  Clark. 

imply  a  cliarge  of  the  crime  of  incest.  In  their  strong- 
est import,  they  imply  no  more  than  fornication  or  adult- 
ery. And  as,  at  the  time  of  speaking  the  words,  a  man 
was  not  liable  to  an  indictment  for  fornication  or  adult- 
ery, we  are  clearly  of  opinion  that  the  words,  as  laid,  are 
not  a  sufficient  foundation  for  an  action  of  slander.  The 
judgment  is,  therefore,  erroneous,  and  must  be  reversed 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Naylor,  for  the  plaintiff. 
Wick,  for  the  defendant. 

(1)  Where  an  action  was  brought  for  words,  in  calling  the  plaintiff  Aereiic 
and  one  of  the  new  learning,  it  was  held  clearly  that  it  would  not  lie,  being 
merely  a  spiritual  matter ;  for  if  the  defendant  was  disposed  to  justify  and 
show  in  what  respect  the  plaintiff  was  a  heretic,  the  temporal  Court  could 
not  judge  of  it ;  and  it  was  not  like  where  the  court  had  cognizance  of  the 
principal  matter,  as  where  a  man  was  called  traitor,  or  felon.  Again,  if  he 
had  called  him  adulterer,  this  being  a  spiritual  matter,  an  action  would  not 
lie  for  it.  But  Fitzherbert  said,  that  where  things  were  of  a  mixed  nature, 
as  where  a  man  was  said  to  keep  a  bawdy-house,  he  might  elect  whether  he 
would  have  his  action  here  or  in  the  spiritual  Court.  27  Hen.  8-14 ; 
Reeves'  Eng.  Law,  385.  The  following  is  the  language  of  Blackstone :  In 
the  year  1650,  when  the  ruling  powers  found  it  for  their  interest  to  put  on 
the  semblance  of  a  very  extraordinary  strictness  and  purity  of  morals,  not 
only  incest  and  wilful  adultery  were  made  capital  crimes;  but  also  the  re- 
peated act  of  keeping  a  brothel,  or  committing  fornication,  were  upon  a 
second  conviction  made  felony  without  benefit  of  clergy.  But  at  the  Res- 
toration, when  men,  from  an  abhorrence  of  the  hypocrisy  of  the  late  times, 
fell  into  a  contrary  extreme  of  licentiousness,  it  was  not  thought  proper  to 
renew  a  law  of  such  unfashionable  rigor.  And  these  offences  have  been 
ever  since  left  to  the  feeble  coercion  of  the  spiritual  Court,  according  to  the 
rules  of  the  canon  law  ;  a  law  which  has  treated  the  offence  of  incontinence, 
nay  even  adultery  itself,  with  a  great  degree  of  tenderness  and  lenity  ;  ow- 
ing, perhaps,  to  the  constrained  celibacy  of  its  first  compilers.  The  tempo- 
ral Courts,  therefore,  take  no  cognizance  of  the  crime  of  the  adultery,  oth- 
erwise than  as  a  private  injury.     4  Bl.  Comm.  65. 

Many  offences  of  private  incontinence  fall  properly  and  exclusively  under 
the  jurisdiction  of  the  ecclesiastical  Court,  and  are  appropriated  to  it.  But 
where  the  incontinence  or  lewdness  is  public,  or  accompanied  with  conspir- 
acy, it  is  indictable. 

Exposing  a  party's  person  to  the  public  view,  is  an  offence  contra  bonos 
mores  and  indictable.     See  1  Sid.  158  ;   2  Camp.  89  ;  1  Kep.  620.     And  by 

(25) 


21-22       SUPPvEME  COURT  OF  IXDIAXA. 

Pollard  V.  Rowland,  in  Error. 

the  vagrant  act,  5  Geo.  4,  exposing  a  man's  person,  with  intent  to  insult  A 
female,  is  an  offence  for  which  the  offender  may  be  treated  as  a  rogue  and 
vagabond  ;  and  so  is  the  wilfully  exposing  an  obscene  print  or  indecent  ex- 
liibition, — indeed  this  would  be  an  indictable  offence  at  common  law.  2 
Stra.  789  ;  1  Barn.  Eep.  29 ;  4  Burr.  2527,  2574.  And  by  the  same  act,  G, 
4,  every  common  i^rostitute  wandering  in  public,  and  behaving  in  a  riotous 
and  indecent  manner,  may  be  treated  as  an  idle  and  disorderly  person 
within  the  meaning  of  that  act. 

Publicly  selling  and  buying  a  wife  is  clearly  an  indictable  offence. 
[*22]   3  Burr.  1438.     "^Procuring  or  endeavoring  to  procure  the  seduction 
of  a  girl  seems  indictable.    3  St.  Tri.  519.     So  is  endeavoring  to  lead 
a  girl  into  prostitution.     3  Burr.  1438;  4  Chitt.     Bl.  C5,  note  (25). 

Vide  SJiields  v.  Cunningham,  Vol.  1  of  these  Eej).  86,  and  note  (3)  ;  Henson 
V,  Yeatch,  Idem,  371,  note  (1). 

The  living  in  ojjen  and  notorious  adultery  or  fornication,  or  being  guilty 
of  open  and  notorious  lewdness  or  of  any  grossly  scandalous  and  public  in- 
decency, is  now  punishable  in  Indiana  by  statute.  E,.  C.  1831,  p.  192. 
And  words  charging  a  female  with  fornication,  &c.,  or  charging  any  person 
with  incest,  sodomy,  &c.,  are  expressly  made  actionable  by  statute.  K.  C. 
1831,  p.  407. 


Pollard  v.  Rowland,  in  Error. 

POLLARD,  the  holder  of  two  promissory  notes  against 
FuUenwider,  put  them  in  the  hands  of  Rowland,  an  at- 
torney at  law,  to  be  collected  from  the  maker.  The  fol- 
lowing receipt  was  given  for  the  notes:  "Received  of  E, 
Pollard  one  note  on  H.  FuUenwider  for  100  dollars  in 
land-office  money,  dated  21st  Aug.  1820,  and  due  the  first 
of  May  then  next;  also  one  note  on  said  FuUenwider  for 
100  dollars  and  37  cents,  payable  in  leather  to  be  deliv-, 
ered  four  miles  from  Bloomington,  on  or  before  the  15th 
'Nov.  1820,  to  collect.  I  am  to  receive  the  customary  fees 
when  the  money  is  collected,  and  if  it  is  never  collected 

then   a  reasonable  fee  for  my  trouble. J.  Rowland." 

FuUenwider's  residence  was  forty  miles  from  Rowland's, 
and  in  a  county  in  which  Rowland  did  not  practice  law. 
Rowland,  without  Pollard's  knowledge,  sent  the  notes  for 
collection  to  Stephen,  an  attorney  at  law,  and  resident  in 

(26) 


NOVEMBER  TERM,  1826.  22-23 

Meek  v.  Kuifner. 

the  same  county  with  Fullenwider.  Stephen,  without 
dehiy,  obtained  judgment  against  Fullenwider  on  the 
notes;  and  issued  a  fieri  facias  thereon,  which  was  re- 
turned nuUa  bona.  A  few  months  afterwards,  Stephen, 
as  attorney  of  Pol  bird,  received  from  Fullenwider  the 
amount  of  the  judgment — part  in  cash  and  part  in  prop- 
erty— which  he  converted  to  his  own  use. 

Held,  that  Rowland  was  accountable  to  Pollard  for  the 
acts  of  Stephen  in  the  business,  to  the  same  extent  that 
Stephen  himself  w^as;  and  that  he  could  make  no  defence 
to  the  suit  of  Pollard  on  the  premises,  which  Stephen 

could  not  make  were  he  sued  by  Pollard. 
[*23]        ^Held,  also,  that  though  Rowland   could    not, 

under  the  circumstances  of  the  case,  be  made  liable 
to  Pollard,  for  negligence  or  a  w^ant  of  skill  in  the  man- 
agement of  the  business;  yet  that  he  was  liable  to  the 
suit  of  Pollard  in  consequence  of  Stephen's  collection  of 
the  money  due  from  Fullenwider  to  Pollard,  and  of  the 
non-payment  of  the  same  by  Stephen  to  Pollard  (1). 

(1)  There  was  another  point  decided  in  this  case,  but  which,  having 
been  since  overruled,  is  not  here  noticed. 

A  suit  can  not  be  maintained  against  an  agent  for  money  collected  for 
his  principal,  nor  against  an  attorney  at  law  for  money  collected  for  his 
client,  until  after  the  money  has  been  demanded.  Armstrong  v.  Smith,  May 
term,  1833;  Judah  v.  Dyott,  November  term,  1833.     Post. 

An  attorney  is  not  liable  for  a  mistake  in  a  point  of  law  on  which  rea- 
sonable doubt  may  be  entertained.     King  v.  Burt,  1  Nev.  &  Man.  262. 


Meek  v.  Ruffner. 


Abatement — Death  op  Plaintiff — Common  Law. — To  an  action  of  as- 
sumpsit by  two  plaintiffs,  the  defendant  pleaded  in  abatement  that  one 
of  the  plaintiffs  had  died  since  the  commencement  of  the  suit.  Held, 
that,  at  common  law,  the  plea  was  good. 

Same — Code — Practice. — The  statute  of  1825  changed  this  law,  and  au- 
thorized the  suit  to  proceed  in  the  name  of  the  survivor,  if  the  cause  ot 
action  survived,  upon  a  suggestion  on  record  of  the  other's  death 

(27) 


23-24       SUPREME  COURT  OF  INDIANA. 

Meek  v.  Ruffner. 

ERROR  to  the  Jefferson  Circuit  Court. 

Blackford,  J.— Assumpsit  by  Jacob  Baymiller  and  Jo- 
seph Ruffner,  against  John  Meek  and  William  H.  Hop- 
kins. Suggestion  entered  of  record,  that  Hopkins  was 
no  inhabitant,  as  returned  by  the  sheriff.  Plea  in  abate- 
ment by  Meek  of  the  death  of  Baymiller,  one  of  the 
plaintiffs,  since  the  commencement  of  the  suit.  Ruffner 
suggested  of  record  the  death  of  Baymiller;  and,  upon 
his  motion,  the  defendant  was  ruled  to  plead.  Plea,  non 
assumpsit.     Verdict  and  judgment  for  the  plaintiff. 

By  the  common  law,  if  one  of  several  plaintiffs  died 
before  final  judgment,  the  suit  was  thereby  abated.  Ham. 
on  Parties,  225.  The  statute  of  8  and  9  Will.  3,  changed 
that  law,  and  authorized  the  suit  to  proceed  in  the  name 
of  the  survivor,  if  the  cause  of  action  survived,  upon  a 
suggestion  on  record  of  the  other's  death.  Ibid.  This 
statute,  however,  was  never  in  force  here.  We 
[*24]  have  now  *a  similar  statute ;  Stat.  1825,  p.  50  ;  but 
the  judgment  in  this  case  was  prior  to  the  exist- 
ence of  that  statute.  This  cause,  therefore,  must  be  gov- 
erned by  the  common  law,  and  the  defendant  had  a  right 
to  plead  the  death  of  Baymiller  in  abatement.  The  Court, 
by  disregarding  that  plea  and  ruling  the  defendant  to 
plead  again,  committed  an  error;  and  the  judgment  must 
be  reversed  (1). 

Per  Curiam.— The  judgment  is  reversed,  and  the  pro- 
ceedings subsequent  to  the  rule  to  plead  inclusive  are  set 
aside,  with  costs.     Cause  remanded,  &c. 

Nelson,  for  the  plaintiff. 

Douglass,  for  the  defendant. 

(1)  2  Will.  Saund.  72,  i,  note.  The  reason  of  the  common-law  rule  is, 
that  the  plaintiffs,  by  joining  in  the  suit,  assert  a  joint  right  of  recovery, 
which,  as  such,  is  destroyed  by  the  death  of  either  of  them.  Gould's  PI. 
265.  Our  present  statute,  which  is  a  copy  of  the  statute  of  1825,  and  sub- 
stantially the  same  with  the  8  and  9  Will.  3,  is  as  follows:  "If,  in  any  ac- 
tion, there  be  two  or  more  plaintiffs  or  defendants,  and  one  or  more  of  them 
should  die,  the  action  shall  not  be  thereby  abated,  if  the  cause  of  such  ac- 
tion survive,  but  such  death  being  suggested   upon  the  record,  the  action 

(28) 


NOVEMBER  TERM,  1826.  24-25 

The  Governor,  for  the  use  of  Gill,  r.  Stribling  and  Others. 

shall  proceed  at  the  suit  of  the  surviving  plaintiff  or  plaintiffs  against  the 
surviving  defendant  or  defendants."     R.  C.  1831,  p.  410. 

The  suggestion,  when  one  of  the  plaintiffs  dies  pending  the  suit,  is  made 
as  follows:  At  which  day,  before  our  said  Court,  come  here  as  well  the  said 
Ruffner,  by  his  said  attorney,  and  the  said  Meek,  by  his  said  attorney,  and 
the  said  Baymiller  comes  not;  and  the  said  Ruffner  hereupon  gives  the 
said  Court  here  to  understand  and  be  informed,  that  since  the  suing  out  of 
the  original  writ  in  this  cause  [or,  after  the  last  continuance  of  the  plea 
aforesaid]  and  before  this  day,  to  wit,  on,  &c.,  the  said  Baymiller  died,  and 
the  said  Ruffner  then  and  there  survived  him  ;  which  the  said  Meek  does 
not  deny,  but  admits  the  same  to  be  true.  And  the  said  Ruffner,  &c.,  [pro- 
ceeding in  his  name  alone.]     Arch.  Forms,  p.  561. 


The  Governor,  for  the  use  of  Gill,  v.  Stribling  and 

Others. 

Writ — Void — UNCERTAmxY  of  Party  to  be  Arrested. — A  capias  ad  re- 
spondendum was  issued  against  Taylor  &  Searles  requiring  bail.  Upon 
this  writ  the  sheriff  arrested  David  S.  Taylor,  but  took  no  bail  and  per- 
mitted him  to  escape.  Held,  that  the  sheriff  committed  no  breach  of 
duty  in  this  discharge  of  Taylor,  although  the  person  intended  by  the 
name  of  Taylor  in  the  writ  was  David  S.  Taylor, 

ERROR  to  the  Jefferson  Circuit  Court. — This  was  an 
action  of  debt  brought  in  the  name  of  the  governor,  for 
the  use  of  Gill,  founded  on  a  sheriff's  bond,  in 
[*25]  which  action  Stribling,  the  ^sheriff*,  and  his  sure- 
ties were  defendants.  Issue  was  joined  upon  the 
performance  of  the  condition  of  the  bond.  Verdict  and 
judgment  for  the  defendants. 

Blackford,  J. — The  facts  stated  in  the  declaration,  to 
make  out  a  breach  of  the  condition,  are,  that  Gill  took 
out  and  delivered  to  Stribling,  as  sheriff,  a  capias  ad  re- 
spondendum against  Taylor  &  Searles,  requiring  bail ;  that 
he  intended  by  Taylor  &  Searles,  David  S.  Taylor  and 
David  Searles ;  that  the  sheriff  arrested  David  S.  Taylor, 
but  did  not  take  bail,  and  voluntarily  permitted  him  to 
escape. 

(29) 


25-26       SUPREME  COURT  OF  INDIANA. 

The  Governor,  for  the  use  of  Newman,  Adm'r,  v.  Shelby,  Adm'x. 

These  facts  constitute  no  breach  of  the  condition  of  the' 
bond.  Upon  a  writ  against  Taylor,  without  any  other 
description,  the  sheriff  was  not  bound  to  arrest  David  S. 
Taylor,  nor,  after  arresting  him,  was  he  bound  to  detain 
him.  It  was  impossible  for  the  sheriff,  from  such  an  im- 
perfect description,  to  know  that  David  S.  Taylor  was  in- 
tended. 

The  record,  therefore,  shows  that  the  plaintiff  had  no 
cause  of  action;  and  he  has  no  right  to  complain  of  the 
judgment  against  him  (1). 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Nelson,  for  the  plaintiff. 

(1)  The  party  whom  the  plaintiff  intended  to  arrest  must  be  correctly 
described  in  the  process ;  if  he  be  not,  the  process  is  no  justification  for  the 
arrest  of  such  person.  Thus,  to  trespass  for  false  imprisonment  brought  by 
A.,  the  defendant  pleaded  that  E.  sued  out  a  lititat  against  the  plaintiff 
A.,  therein  called  by  the  name  of  C,  directed  to  the  sheriff,  &c.,  authoriz- 
ing him  to  arrest  C. ;  that  the  sheriff  directed  his  warrant  to  the  defendant, 
commanding  him  to  take  the  said  A.  therein  called  by  the  name  of  G. ;  aver- 
ment, that  A.  and  C.  named  in  the  writ  and  warrant  are  one  and  the  same 
person.  This  plea,  or  general  demurrer,  was  held  to  be  bad.  Shadgelt  v. 
Clipson,  8  East.  328.  So,  to  trespass  for  taking  A.'s  goods,  the  officer  plead- 
ed that  he  took  them  under  a  distringas  against  B.,  meaning  the  said  A., 
to  comijel  an  appearance ;  averring  that  A.  and  B.  were  the  same  person, 
(A.  had  not  appeared  in  the  original  action.)  Held  on  demurrer,  that  the 
plea  was  bad.  Cole  v;  Hindson,  6  T.  K.  234.  So,  where  Daniel  S.  Gris- 
wold  was  arrested  on  process  of  attachment  issued  out  of  the  equity  side  of 
the  Circuit  Court  of  the  United  States  against  Samuel  S.  Griswold,  it  was 
held  that  an  action  of  false  imprisonment  lay  by  Daniel  S.  Griswold  against 
the  marshal,  his  deputy,  and  the  solicitor  concerned  in  the  arrest;  and 
that  this  was  so,  though  Daniel  S.  Griswold  was  the  person  intended.  GVis- 
wold  V.  Sedgwick,  6  Cowen,  456.     S.  C.     1  Wend.  126. 


[*26]    *The  Governor,  for  the  use  of  Newman,  Adminis- 
trator, V.  Shelby,  Administratrix. 

Evidence— Judgment  Against  Co-Obligor. — In  a   suit  against  the  ad- 
ministratrix of  A.  on  a  bond  in  which  he  was  surety  for  B.  as  sheriff, 

(30) 


NOVEMBER  TERM,  1826.  26 

The  Governor,  for  the  use  of  Newman,  Adni'r,  v.  Shelby,  Adm'x. 

a  judginent  jjreviously  obtained  against  B.  on  the  same  bond  is  inadmis- 
sible as  evidence  for  the  plaintiff  (o). 

Same. — If  the  administratrix,  being  sued  on  the  bond,  had  given  notice 
of  the  pendency  of  the  suit  to  B.,  and  there  had  been  judgment  against 
her,  that  judgment  would  have  been  conclusive  against  B.  in  a  suit 
against  him  by  the  administratrix. 

Same— ScEETY  Bouxd  by  Judgment  Agaixst  Pkixxipai.. — If  a  devasta- 
vit be  established  against  an  administrator,  his  sureties  can  not  after- 
wards controvert  the  devastavit  (6). 

Same — Instruction  as  to  Insufficiency. — The  Court  can  not  give  an 
unqualified  charge  to  the  jury,  that  the  evidence  is  insuflScient  to 
support  the  action,  unless  in  cases  where  it  would  be  bound  to  set  aside 
the  verdict  if  for  the  plaintiff  (c). 

ERROR  to  the  Clark  Circuit  Court. 

HoLMAN,  J. — Debt  on  a  sheriif's  bond,  brought  by  the 
governor  for  the  use  of  jSTewman,  administrator  of  Han- 
cock deceased,  against  M.  Shelby,  administratrix  of  E, 
Shelby,  deceased,  one  of  the  sureties  of  Weathers,  late 
sheriff  of  Clark  county.  The  breach  assigned  is,  that 
Weathers  failed  to  return  an  execution  in  favor  of  Han- 
cock against  A.  Sumner,  administratrix  of  W.  B.  Sum- 
ner, deceased,  which  issued  from  the  clerk's  office  of  the 
Clark  Circuit  Court  on  the  10th  of  September,  1817,  and 
was  placed  in  the  hands  of  Weathers,  as  sheriff,  for  col- 
lection. And  it  is  averred,  that  Il^ewman,  administrator 
of  Hancock,  deceased,  recovered  a  judgment  against 
Weathers  for  failing  to  return  said  execution;  and  that 
an  execution  issued  against  Weathers  on  the  judgment, 
and  was  returned  nulla  bona.  Pleas,  first,  that  no  exe- 
cution— issued  from  the  clerk's  office  of  the  Clark  Circuit 
Court  in  favor  of  Hancock  against  A.  Sumner,  adminis- 
tratrix of  W.  B.  Sumner,  deceased,  on  the  10th  of  Sep- 
tember, 1817 — was  ever  placed  in  the  hands  of  Weathers 
for  collection ;  secondl}^,  that  the  supposed  execution  did 
not  contain  any  command  to  the  sheriff"  to  make  a  return 
thereof.     Verdict  for  the  defendant.     Motion  for  a  new 

(a)  See  Post  222,  289;  3  Blkf.  104.  (6)  See  1  Ind.  105,  538;  5  M.  202. 
(c)  See  42  Ind.  574;  56  Id.  296;  18  Id.  502;  8  Blkf.  256. 

(31) 


26-27       SUPREME  COURT  OF  INDIAI^A. 

The  Governor,  for  the  use  of  Newman,  Adm'r,  r.  Shelby,  Adm'x. 

trial  overruled.     Bill  of  exceptions.     Judgment  for  the 
defendant. 

The  bill  of  exceptions  set  forth  the  whole  of  the  evi- 
dence, and  the  instructions  of  the  Court  to  the  jury. 

The  plaintiiF  introduced  the  execution-docket 
[=^27]  of  the  Clark  ^Circuit  Court,  in  which  the  issuing 
of  the  execution  was  entered  in  the  ordinary  form, 
except  that  the  column  which  contained  the  species  of 
execution  was  filled  with  the  words  "order  of  sale."  He 
introduced  J.  Shelby,  the  clerk  of  the  Court  at  the  time 
of  making  said  entry  in  the  execution-docket,  who  tes- 
tified— that  "Weathers  was  sheriflT  in  September,  1817 — 
that  he  was  in  the  habit  of  delivering  to  Weathers  exe- 
cutions generally — that  his  practice  was  to  make  out  ex- 
ecutions, and  put  them  in  a.  bundle  on  the  table  in  his 
office,  where  Weathers  received  them — that  when  he 
handed  executions  to  the  attorneys  or  other  persons  be- 
sides the  sheriff,  he  noted  in  the  execution  docket  to 
whom  they  were  delivered — that  it  appeared  from  the 
docket  in  this  case  that  no  note  or  mark  was  made  to 
show  that  the  execution  was  delivered  to  any  person — 
that  when  executions  remained  in  the  office,  he  made  a 
remark  to  that  effect  in  a  column  of  the  execution- 
docket — that  though  it  was  possible  this  execution  had 
been  delivered  to  some  other  person,  and  had  never  come 
to  the  hands  of  Weathers,  yet  he  concluded  he  had  deliv- 
ered it  to  him  from  an  inspection  of  the  execution-docket 
— that  he  never  issued  an  execution  without  inserting  a 
return  day — that  he  never  issued  but  two  or  three  orders 
of  sale,  and  did  not  recollect  whether  they  were  return- 
able to  a  particular  day  or  not — that  the  execution- 
docket  in  this  case  showed  a  regular  return  day — and 
that  the  column  left  for  the  insertion  of  the  return  still 
remained  a  blank. 

The  plaintiflF,  also,  offered  in  evidence  the  judgment  in 
favor  of  Newman  against  Weathers,  for  failing  to  return 

(32) 


NOVEMBER  TERM,  1826.  27-28 


The  Governor,  for  the  use  of  Newman,  Adnl'r,  v.  Shelby,  Adm'x. 


the  execution  mentioned  in  the  clecUiration.     This  evi- 
dence was  objected  to,  and  the  objection  sustained. 

The  Court  instructed  the  jury,  that  the  evidence  was 
insufficient  in  law  to  maintain  the  action. 

The  errors  assigned  are,  first,  th'at  the  Court  erred  in 
their  refusal  to  permit  the  judgment  against  Weathers  to 
be  given  in  evidence;  secondly,  that  they  erred  in  their 
instructions  to  the  jury. 

In  support  of  his  first  position,  the  plaintiff"  relies  on 
the  case  of  KijJ  v.  Brighain,  6  Johns.  R.  158,  and  on  the 
case  of  The  Associate   Judges  of  Clark  Comity  v.  Wilson 
(1).     Neither  of  these  cases  is  analogous.     In  Kip  v.  Brig- 
ham,  the  sheriff"  had  taken  a  bond  with  surety  from 
[*28]    a  prisoner  for  the  gaol  liberties;    the  ^prisoner 
escaped ;    and  the  sheriff"  was  sued  for  the  escape. 
The  sheriff"  gave  notice  of  the  suit  to  the  prisoner's  sure- 
ties.    They  attended  at  the  trial  and  aided  the  sheriff'  in 
his  defence;  but  judgment  was  given  against  the  sheriff. 
In  a  suit  by  the  sheriff"  against  the  sureties  for  this  escape, 
the  judgment  against  the  sheriff"  was  held  to  be  conclu- 
sive against  the  sureties.     In  that  case,  the  sureties  were 
the  only  persons  really  liable.     The  sheriff",  though  liable 
to  the  action  in  the  first  instance,  was  entitled  to  a  remu- 
neration from  the  sureties  for  all  the  damages  he  sus- 
tained.    The  sureties    having    notice  of  the  first  action, 
and  having  assisted  in  the  defence,  were  not  afterwards 
permitted  to  controvert  the  facts  established  by  the  first 
judgment.     The  case  of  Blasdale  v.  Babcock,  1  Johns.  R. 
517,  goes  still  further,  and  fixes  the  conclusiveness  of  the 
judgment  against  the  party  ultimately  bound,  not  on  the 
circumstances  of  his  aiding   in  the  defence,  but  on  the 
fact  of  his  having  notice  of  the  first  action.     See,  also, 
Bender  V.  Froniberger,  4  Dall.  436;  Hamilton  v.   Cutts,  4 
Mass.  349. 

But  the  present  case  is  entirely  dissimilar.     This  is  a 
claim  against  two  co-obligors,  who,  so  far  as  the  plaintiff" 
is  concerned,  are   subject   to  the   same   liabilities.     The 
YoL  II.— 3  (33\ 


28-29       SUPREME  COURT  OF  INDIANA. 

The  Governor,  for  the  use  of  Newman,  Adm'r,  v.  Shelby,  Adm'x. 

ju'lgment  against  the  one  concludes  nothing  against  the 
other  in  behalf  of  the  plaintiff,  even  if  that  other  had 
notice  of  the  first  action,  which,  it  seems,  was  not  the 
case  in  this  transaction.  If  Shelby  had  been  sued  alone, 
and  had  given  notice  to  Weathers  of  the  pendency  of  the 
action,  and  judgment  had  been  given  against  him;  that 
judgment,  agreeably  to  the  foregoing  cases,  would  have 
been  conclusive  against  Weathers,  in  a  suit  by  Shelby 
against  Weathers  for  the  amount  he  was  thus  compelled 
to  pay  on  account  oi'the  official  default  of  Weathers;  but 
it  would  have  concluded  nothing  in  behalf  of  the  plaintiff 
against  Weathers, 

The  case  of  The  Associate  Judges  of  Clark  v.  Wilson  is 
equally  inapplicable.  The  point  there  determined  is, 
that  when  a  devastavit  has  been  established  against  an 
administrator  by  a  regular  judgment,  the  sureties  are  not 
permitted  to  controvert  that  fact.  The  law  has  placed 
the  sureties  of  executors  and  administrators  on  a  diflerent 
footing  from  other  sureties  and  co-obligors  in  general. 
They  are  not  liable  on  the  administration-bond,  until  a 
devastavit  is  judicially  established;  and,  as  the  question 

of  a  devastavit  is  all  that  is  controverted  in  the 
[*29]    *suit  against   the    executor  or  administrator,  the 

decision  is  conclusive  not  only  against  the  exec- 
utor or  administrator,  but  against  the  sureties  also.  But 
the  sureties  of  a  sherifl"  have  no  such  indulgence.  They 
are  liable  to  be  sued  on  the  sherifi''s  bond  in  the  first 
instance,  either  with  or  without  the  sheriff,  before  any- 
thing has  been  determined  as  to  the  sheriff''s  default. 
Weathers  and  Shelby  are  in  the  same  situation  as  other 
co-obligors;  and  the  general  rule  is — that  a  judgment  is 
evidence  between  the  same  parties,  on  the  same  subject, 
and  all  persons  claiming  under  them;  but  that  it  does 
not  extend  to  strangers,  who  have  no  opportunity  of  ex- 
amining witnesses,  making  defence,  or  appealing  to  a 
higher  tribunal.     1  Phil.  Ev.  222.     So  that  Shelby  could 

(34) 


NOVEMBER  TERM,  1826.  29-30 

The  Governor,  for  the  use  of  Newman,  Adm'r,  v.  Shelby,  Adni'x. 

not  be  bound  by  the  judgment  against  "Weathers,  nor  in 
any  manner  affected  b}'  it. 

With  regard  to  the  instructions  of  the  Court,  it  may  be 
observed  that  the  testimony  is  not  conclusively  defective. 
And  before  a  court  is  authorized  to  give  an  unqualified 
charge  to  the  jury,  that  the  evidence  is  insuflicieut  to 
support  an  action  or  a  defence,  there  should  be  some  ab- 
solute deficiency  in  the  testimony,  which  could  not  be 
supplied  by  intendment  or  inference;  as  where  some  im- 
portant fact  was  not  proved  at  all.  The  jury  being  the 
constitutional  judges  not  only  of  facts,  but  of  the  weight 
and  extent  of  the  evidence,  they  should  be  left  in  the  un- 
biassed possession  of  every  case,  where  there  is  evidence 
that  conduces  to  prove  every  material  fact  in  the  case. 
When  a  party  is  unwilling  to  trust  his  case  to  a  jury,  he 
may  demur  to  the  evidence,  but  where  the  case  is  sub- 
mitted to  the  jury,  he  is  not  entitled  to  the  instruction 
of  the  Court  in  his  favor,  on  the  weight  and  extent  of  the 
testimony,  in  every  case  where,  on  a  demurrer  to  evi 
dence,  he  would  be  entitled  to  a  judgment.  The  Court 
should  not  give  an  unqualified  charge  to  the  jury  that 
the  evidence  is  insufiicient,  iu  every  case  where  it  would 
grant  a  new  trial  if  a  verdict  was  found  contrary  to  its 
opinion.  Such  a  charge  should  be  given  in  such  cases 
only  where,  if  a  verdict  was  found  differently,  the  Court 
would  be  absolutely  bound  by  law  to  set  it  aside.  The 
testimony  in  this  case  is  not  of  such  a  decisive  character, 
that,  if  the  jury  had  found  a  verdict  for  the  plaintiff',  the 
Court  would  have  been  absolutely  bound  to  set  it  aside. 

The  point  where  the  testimony  seems  most  defect- 
[*30]    ive,  is,  as  to  the  nature  *of  the  process  that  issued 

in  the  case  o^  Hancock  v.  Sumner.  The  breach  as- 
signed in  the  sheriff's  bond  is  for  failing  to  return  an 
execution ;  and  the  process  that  issued  seems  to  have 
been  an  order  of  sale.  There  are  but  a  few  cases  where 
final  process  issues  under  the  name  of  "orders  of  sale;" 
and  these  orders  of  sale  are  in  the  nature  of  executions, 

(35) 


80-31       SUPRExVlE  COURT  OF  INDIANA. 

Elliott  and  Another  v.  Ray,  in  Error. 

and  subject  to  the  same  regulations ;  and  where  they 
difter  in  nothing  but  name  from  a  venditioni  exponas,  we 
see  no  particular  evil  that  can  arise  from  permitting  them 
to  be  described  by  the  general  term  of  executions.  If 
this  order  of  sale  was  not  different  in  its  nature  from  an 
execution,  and  we  have  some  reason  to  believe  it  was 
not,  the  description  of  it  in  the  declaration  is  such  as  to 
preclude  the  idea  that  the  defendant  was  surprised  by  its 
being  termed  an  execution,  or  that  he  would  be  liable  to 
another  action  for  the  same  cause.  Taking  the  whole  of 
the  testimony  together,  we  think  it  far  from  certain  that 
the  jury  might  not  infer  from  it,  the  issuing  of  the  exe- 
cution, the  delivering  of  it  to  Weathers,  and  his  failure 
to  return  it.  So  that,  although  it  may  be  extremely 
doubtful  whether  the  plaintiff"  ought  to  recover  or  not, 
yet  in  order  to  give  him  the  benefit  of  a  jury  trial,  and  to 
give  the  jury  the  full  exercise  of  their  powers,  the  case 
should  be  left  with  the  jur}'  to  draw  their  own  inferences 
from  the  testimony. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside.     Cause  remanded,  &c. 

Naylor,  for  the  plaintiff. 

Howk  and  Dewey,  for  the  defendant. 

(1)  Vide  Vol.  I.  of  these  Eep.  344. 


[*31]      *Elliott  and  Another  v.  Ray,  in  Error. 
Judgment,  Action  on  (a). 

THE  general  doctrine  is,  that  an  action  of  debt  can  not 
be  sustained  on  a  decree  in  chancery.  Jones  v.  Bradshaw, 
Cas.  Temp.  Talb.  223;  3  P.  Wms.  401,  note  f;  Hugh  v. 
Bif/rjs,  8  Wheat.  697. 

An  action  of  debt  will  not  lie  on  the  decree  of  a  Court 

(o)  See  post,  82 ;  3  Blkf.  375 ;  4  /d.  53 ;  6  Id.  337  ;  16  Ind.  46. 

(36) 


NOVEMBER  TERM,  1826.  31-32 

Elliott  and  Another  v.  Kay,  in  Error. 

of  chancery  in  another  state,  unless  the  decree  have,  by 
the  statute  of  that  state,  the  force  and  effect  of  a  judg- 
ment at  law  (1). 

If  the  decree  have  such  effect  by  statute,  that  fact 
should  be  averred  and  proved ;  the  statutes  of  other  states 
not  being  noticed  here  without  proof  (2). 

(1)  It  is  enacted,  by  a  recent  statute,  that  money  due  by  a  final  decree 
of  a  Court  of  equity,  without  this  state,  may  be  recovered  in  an  action  of 
debt.     Stat.  1833,  p.  112. 

(2)  \ide  Stout  v.  Wood,  Vol.  I.  of  these  Kep.  71;  Cone  v.  Cotton,  Nov, 
term,  1827,  post. 

The  statutes  of  one  of  the  states,  unless  pleaded,  can  not  be  noticed  by 
the  Courts  of  another  state.  Walker  v.  Maxwell,  1  Mass.  104;  Pearsall  v. 
Dwi()hi,  2  id.  84;  Legy  v.  Legg,  8  id.  99;  Beauchamp  v.  Mudd,  Hardin,  163. 
To  entitle  such  statutes  to  judicial  notice  in  another  state,  they  must  be 
proved.  Tarlton  v.  Briscoe,  4  Bibb.  73;  Talbot  v.  David,  2  Marsh.  609; 
Church  v.  Hubbart,  2  Cranch.  186;  Thompson  v.  Ketcham,  8  Johns.  K.  189; 
Hosford  v.  Nichols,  1  Paige,  220,  226.  By  act  of  congress,  "  the  acts  of  the 
legislatures  of  the  several  states  shall  be  authenticated  by  having  the  seal 
of  their  respective  states  affixed  thereto."  Gord.  Dig.  940.  And  it  has 
accordingly  been  held,  that  a  statute  of  one  state  is  not  admissable  in  evi- 
dence in  the  Courts  of  another,  unless  it  be  so  authenticated.  Craig  v. 
Brotm,  1  Peters,  C.  C.  K.  352  ;  State  v.  Tivitty,  2  Hawke.  441.  But,  in  Penn- 
sylvania, copies  of  the  statutes  of  another  state,  contained  in  a  book  pur- 
porting to  contain  the  laws  of  such  state,  and  to  be  printed  by  the  public 
printer,  are  admissible  in  evidence.  Thompson  v.  Musser,  1  Dall.  462  ;  Bid- 
dis  v.  James,  6  Binn.  321.  So,  in  Massachusetts.  Raynham  v.  Canton,  3 
Pick.  293.  So,  in  Vermont.  State  v.  Stade,  1  Chip.  303.  The  statute- 
book  of  another  state,  printed  by  a  private  printer,  is  not  admissible  in 
Connecticut.     Bastwick  v.  Bogardus,  2  Koot,  250. 

The  written  law  of  a  foreign  state  must  be  proved  by  a  copy  duly  authen- 
ticated. Clegg  v.  Levy,  3  Campb.  166.  The  unwritten  law  of  a  foreign 
state  may  be  proved  by  the  parol  evidence  of  witnesses  professing  profes- 
sional skill.  Miller  v.  Heinrick,  4  Campb.  155,  per  Gibbs,  C.  J.  Vide  Ros- 
coe  on  Ev.  p.  60. 

Copies  of  the  statutes  of  Great  Britain  and  Ireland  prior  to  the  Union, 
printed  by  the  king's  printer,  are  received  mutually  as  conclusive  evidence 
of  the  several  statutes  in  the  courts  of  either  kingdom.     Stat.  41  Geo.  3. 

Particular  customs  and  private  statutes,  like  the  statutes  of  other 
[•■■32]  states,  and  ••■foreign  laws,  being  no  part  of  the  general  law  of  the 
land,  must  be  set  forth  in  the  pleading  of  the  party  relying  on  them. 
They  are  pleaded  as  matters  of  fact;  and  their  existence  may  be  denied  by 
plea.  When  denied,  they  must  be  proved  as  other  facts  are  proved. 
Gould's  PI.  56;  1  Chitt.  PL  218;  Steph.  on  PI.  252. 

(3T; 


32  SUPREME  COURT  OF  INDIANA. 


Doe,  on  the  Demise  of  Wayman  r.  Naylor. 


Doe,  on  the  Demise  of  Wayman  v.  Naylor. 

Judicial  Sale — Rents  and  Profits — Realty. — By  the  statute  of  1817, 
real  estate  might  be  sold  on  an  execution  of  fieri  facias,  without  an  in- 
quiry as  to  the  value  of  the  rents  and  profits,  or  a  venditioni  exponas; 
unless  the  execution-defendant  required  an  inquest. 

Constitutional  Law— Effect  of  Repeal.— If  a  statute  be  repealed,  and  the 
repealing  act  itself  be  afterwards  repealed,  the  original  act  is  revived  (a). 

Judicial  SA^le — Realty — Rents. — The  statute  of  1821  supplied  an 
omission  in  that  of  1817,  by  authorizing  a  venditioni  exponas  and  sale 
of  land,  where  the  rents  and  profits  had  been  offered  for  sale,  but  would 
made  a  part  of  the  record  in  some  way  known  to  the  law   (b). 

Same — Act  1817. — A  venditioni  exponas  was  not  necessary,  under  the 
statute  of  1817,  except  in  cases  where  there  had  been  an  inquest. 

Same — Act  1810. — By  the  statute  of  1810,  an  inquest  and  venditioni  expo- 
nas were  necessary  without  request. 

Deed — Acknowledgment — Effect  of. — If  a  conveyance  of  real  estate 
appeal's  on  its  face  to  have  been  regularly  executed,  and  its  execution  is 
attested  by  subscribing  witnesses,  it  is  admissible  in  evidence  without  a 
certificate  of  acknowledgment ;  an  acknowledgment  being  essential  to 
the  admission  of  a  deed  of  record,  but  not  to  its  validity. 

ERROR  to  Jackson  Circuit  Court. — Ejectment  for  a 
lot  of  ground  in  Brownstown,  in  which  suit  Wa^'man  is 
the  lessor  of  the  plaintift',  and  Naylor  is  the  defendant. 
Plea,  the  general  issue.  The  plaintiff  proved  that  the 
defendant,  being  the  owner  of  the  lot  in  question,  became 
replevin-surety  of  record  for  the  payment  of  a  judgment 
against  Beatty  in  favor  of  Steele  &  M'Carty.  He  then 
after  proof  of  the  judgment,  offered  in  evidence  an  execu- 
tion of  fieri  facias  against  the  defendant  as  the  replevin- 
surety,  the  sheriff's  return  of  the  execution  showing  a 
sale  of  the  premises  to  the  lessor,  and  the  sheriff's  deed 
in  conformity  with  the  sale.  This  evidence  was  objected 
to  by  the  defendant,  and  the  objection  was  sustained. 
Verdict  and  judgment  for  the  defendant. 

Blackford,  J. — It  is  contended  that  the  execution  of 
fieri  facias  did  not  authorize  the. sale;  but  that  an  inquest 

{«)  47  Id.  283.     (6)  See  19  Ind.  15. 

(38) 


NOVEMBER  TERM,  1826.  33 


Doe,  on  the  Demise  of  Wayman  v.  Naylor, 


to  inquire  as  to  the  rents  and  profits,  and  a  vendi- 
[*33]  tioni  exponas,  were  also  ^necessary.  By  the  sec- 
ond section  of  the  act  of  1818,  subjecting  real  and 
personal  property  to  execution,  Stat.  1818,  p.  185,  an  in- 
quest and  venditioni  exponas  were  made  necessary,  in 
cases  lohere  the  defendant  requested  an  inquest.  That  section 
of  the  statute  of  1818  was  repealed  in  1820.  Stat.  1820, 
p.  113.  This  repealing  act  was  itself  repealed  in  1821; 
Stat.  1821,  p.  36;  and  consequently  the  second  section  of 
the  act  of  1818  was  revived.  The  act  of  1822,  p.  81,  is 
supplemental  to  the  act  of  1818,  as  amended  by  that  of 

1821,  Stat.  1821,  p.  3,  and  supplied  an  omission  in  the 
statute  of  1818,  by  authorizing  a  venditioni  exponas  and 
sale,  where  the  rents  and  profits  would  not  sell  for  a  suffi- 
cient sum  to  pay  the  debt. 

The  act  of  1818,  sec.  2,  governs  this  case,  which  was  in 
the  year  1822;  and  as  the  record  shows  no  request  for  an 
inquest,  none  was  necessary  ;  nor  was  a  venditioni  exponas 
necessary,  which  was  only  required  when  there  had  been 
an  inquest.  The  fieri  facias,  therefore,  must  be  consid- 
ered as  having  warranted  the  sale. 

The  case  of  Armstrong  v.  Jackson  d.  Elliott,  Nov.  term, 

1822,  cited  by  the  defendant,  does  not  apply  (1).  That 
case  was  governed  by  the  act  of  1810,  according  to  which 
the  inquest  and  venditioni  exponas  were  necessary  without 
request. 

The  objection  to  the  fieri  facias  and  return,  as  evidence 
in  this  case,  should  have  been  overruled. 

It  is  contended  that  the  sheriff's  deed  had  not  been 
properly  acknowledged,  and  was  therefore  inadmissible. 
The  deed  appears  on  its  face  to  have  been  regularly  exe- 
cuted, and  its  execution  is  attested  by  subscribing  wit- 
nesses. An  acknowledgment  is  necessary  for  the  admis- 
sion of  a  deed  to  record,  but  is  not  essential  to  its  valid- 
ity. The  want  of  a  proper  certificate  of  acknowledgment 
was,  therefore,  no  ground  for  rejecting  the  sheriff's  deed. 

Per  Curiam.— The  judgment  is  reversed,  and  the  pro- 
^    (-39) 


33-34       SUPREME  COURT  OF  INDIANA. 


Eiley  and  Another  v.  Harkness,  in  Error, 


ceedings  subsequent  to  the  issue  are  set  aside  with  costs. 
Cause  remanded,  &c. 

Payne,  for  the  plaintiff". 

Naylor  and  Nelson,  for  the  defendant. 

(1)  Vol.  1  of  these  Kep.  219. 


[*34]    *RiLEY  and  Another  v.  Harkness,  in  Error. 
Pleadings — Not  Verified. 

A  SPECIAL  plea  of  non  est  factum,  alleging  a  material 
alteration  of  the  bond  without  the  obligor's  consent,  may, 
if  not  sworn  to,  be  rejected  on  motion  ;  but  it  can  not  be 
treated  as  a  nullity  (1)  {a). 

Two  pleas  in  bar  to  the  whole  cause  of  action.  An  is- 
sue in  law  on  one  and  of  fact  on  the  other.  Verdict  for 
the  plaintiff.  Held,  that  final  judgment  could  not  be  ren- 
dered on  the  verdict,  until  the  issue  in  law  was  disposed 
of  (2)  {h). 

The  plaintiff'  can  not  demur  and  reply  to  the  same 
plea  (3). 

(1)  The  statute  requires  plea  of  non  est  factum  to  be  sworn  to.  E..  C. 
1824,  p.  292;  R.  C.  1831,  p.  403. 

(2)  Foredora.  Several  pleas  in  bar.  Replication  to  the  eighth  plea,  and 
demurrer  to  the  replication.  On  the  other  pleas  issues  were  joined.  Judg- 
ment on  the  demurrer  for  the  demandant.  The  demandant,  afterwards^ 
proceeded  to  trial  on  the  other  issues,  and  obtained  a  verdict.  The  entry 
on  the  record  was  as  follows:  "And  hereupon  all  and  singular  the  prem- 
ises whereof  the  said  parties  have  put  themselves  upon  the  judgment  of  the 
Court,  being  seen  and  by  the  justices  here  fully  understood,  and  mature  de- 
liberation thereupon  had,  it  appears  to  the  said  justices  here  that  the  repli- 
cation of  the  said  Francis  Cholmeley,  the  demandant,  to  the  snid  plea  of  the 
said  Charles  Cockerell  and  Henry  Trail,  the  said  tenants,  by  them  eighthly 
above  pleaded,  and  the  matters  therein  contained,  in  manner  and  form  as 
the  same  are  above  pleaded  and  set  forth,  is  sufficient  in  law  for  the  said 

(a)  6  Blkf.  288.     {h)  3  Blkf.  34. 

(40) 


NOVEMBER  TERM,  1826.  34-35 

Server  r.  The  State,  in  Error. 

demandant  to  have  and  maintain  his  aforesaid  action  against  them ; 
but  because  it  is  unkncwn.  to  (he  Justices  here,  ivhether  or  not  the  said  Charles 
Cockerell  and  Henry  Trail,  the  said  tenants,  uill  be  convicted  on  the  trial  of  the 
said  issues  above  joined  between  the  parties  aforesaid,  to  be  tried  by  the  country  / 
therefore,  let  (he  giving  of  the  judgment  in  this  behalf  be  stayed  until  the  trial  of  the 
said  last-mentioned  issues." 

(Then  after  stating  the  venire  facias,  &c.,  and  that,  on  the  trial  of  the 
issues,  the  Jury  found  the  several  issues  joined  in  favor  of  the  demandant, 
several  continuances  were  entered,  and  lastly  to  the 'morrow  of  the  Holy 
Trinity.) 

'•At  which  day  come  here  the  parties  last  aforesaid  by  their  respective 
attorneys  aforesaid,  and  hereupon  all  and  singular  the  premises  being  seen, 
and  by  the  said  justices  here  fully  understood,  and  mature  deliberation  being 
thereupon  had,  it  is  considered  by  the  said  justices  that  the  said  Francis 
Cholmeley  do  recover  his  seisin  against  the  said  Charles  Cockerell  and 
Henry  Trail,  of  the  manor  and  tenements  aforesaid,  with  the  appurtenances 
above  demanded.  And  the  said  Charles  Cockerell  and  Henry  Trail  in 
mercy,  &c."     Cockerell  el  al.  v.  Cholmeley,  10  Barn,  and  Cress.  564. 

Vide,  also,  Meylin  v.  Woodford,  Vol.  1  of  these  Eep.  286 ;  Fischli  v.  Covxin, 
Ibid.  350;  Siuan  v.  Hary,  Xov.  term,  1833,  post. 

(3)  Vide  Hair  v.  Weaver,  Vol.  1  of  these  Eep.  77 ;  Steph.  on  PI.  296. 


p35]  *  Server  v.  The  State,  in  Error. 

Perjury — Authority  of  Officer. 

IN  an  indictment  for  perjury,  the  oath  said  to  be  false 
was  chars^ed  to  have  been  administered  in  the  Circuit 
Court  by  S.  C.  as  deputy  clerk.  Held,  that  no  proof  of 
the  appointment  of  the  deputy  clerk  was  necessary;  that 
in  administering  the  oath,  S.  C.  acted  under  the  superin- 
tendence of  the  Court ;  and  that  the  oath  was  as  obliga- 
tory as  if  it  had  been  administered  by  one  of  the  judges. 


(41) 


35  SUPREME  COURT  OF  INDIANA. 


The  State  v.  Miller. 


The  State  r.  Miller. 

Graxb  Jury — Qualifications  as  to  Age. — The  circumstances  that  some 
of  the  grand  jurors  who  had  found  an  indictment,  were  above  sixty  years 
of  age,  is  no  objection  to  the  indictment. 

vSame. — The  statute  of  1824  excuses  persons  above  sixty  years  of  age  from 
serving  on  juries,  if  they  choo.se  to  claim  the  privilege;  but  the  party  in- 
dicted can  not  object  to  them  on  that  ground. 

ERROR  to  the  Floyd  Circuit  Court. 

Blackford,  J. — Indictment  for  an  assault.  Plea  in 
abatement,  that  two  of  the  grand  jurors  who  found  the 
bill  were  above  60  years  of  age.  Demurrer  to  the  plea, 
and  judgment  for  the  defendant. 

This  plea  is  founded  upon  the  statute  of  1824.  R.  C. 
1824,  p.  234.  That  statute  requires  the  county  commis- 
sioners to  select  persons  as  jurors,  who  are  between  the 
ages  of  21  and  60  years.  It  is  very  similar  to  the  statute 
of  "Westminster  2,  ch.  38,  which  expressly  provides,  that 
old  men  above  the  age  of  70  years  shall  not  be  put  on 
juries.  According  to  the  construction  given  to  the  stat- 
ute of  Westminster,  such  old  men  if  returned  may  be  dis- 
charged upon  their  claiming  the  privilege,  but  the  party 
has  no  right  to  challenge  them.  3  Bac.  759.  So,  with 
respect  to  our  statute,  men  above  60  years  are  excused 
from  serving  on  juries,  if  they  choose  to  claim  the  priv- 
ilege, but  the  party  has  no  right  to  object  either  by  chal- 
lenge or  otherwise,  because  any  such  men  happen  to  be 
upon  the  jurj''  (1). 

Per  Curiam. — The  judgment  is  reversed,  and  the  pro- 
ceedings subsequent  to  the  joinder  in  demurrer  are  set 
aside,  with  costs.     Cause  remanded,  &c. 

Whitco77}b,  for  the  state. 

Farnham.,  for  the  defendant. 

(1)  The  act  of  1831  says,  that  nothing  therein  shall  be  so  construed  as  to 
prevent  persons  over  the  age  of  60  years  from  serving  as  grand  or  petit  ju- 
rors.    K.  C.  1831,  p.  292. 

END  OF  NOVEMBER  TERM,  1826. 
(42) 


[*37]  *  CASES 

AEGUED  AND  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 


STATE  OF  INDIANA, 


AT  INDIANAPOLIS,   MAY  TERM,    1827,   IN   THE  ELEVENTH  YEAR  OF 
THE   STATE. 


Harrington  v.  Witherow,  in  Error. 

Pleading — Diligence — Facts  (a). 

A.  ASSIGNED  to  B.  a  note  against  C.  in  payment  of 
a  judgment  which  B.  had  obtained  against  A.;  and  it  was 
agreed,  that  if  the  money  conld  not  be  obtained  by  due 
course  of  law  from  C,  A.  would  pay  to  B.  the  amount 
due  on  the  judgment.  Held,  that  in  a  suit  by  B.  against 
A.,  after  failure  to  recover  the  money  from  C,  an  aver- 
ment in  the  declaration  that  the  plaintitf  had,  without  de- 
lay, prosecuted  C.  to  insolvency  without  obtaining  the 
money  insufficient;  that  due  diligence,  in  the  prosecution 
of  a  suit,  is  a  matter  of  law  arising  out  of  the  facts  of  the 
case,  which  facts  must  be  set  out  that  the  Court  may  de- 
termine whether  they  show  due  diligence  or  not;  that  the 
time  when  and  the  place  where  suit  was  instituted,  the 

(a)   See  17  Ind.  545-549  ;  48  Id.   106  ;  13  Id.  357 ;  10  Id.  451. 

(43) 


37-38       SUPREME  COURT  OF  INDIANA. 

Eeno  and  Another  i.  Hollowell. 

time  judgment  was  obtained,  the  nature  of  the  execution, 
the  time  it  issued,  and  the  sheriff's  return,  should  be  set 
forth  (1).  Held,  also,  that  if  the  sum  to  which  the  plain- 
tift"  was  entitled  depended  on  the  amount  due  on  the 
judgment,  the  Court  could  assess  the  damages,  after  judg- 
ment for  the  plaintiff  on  demurrer,  without  a  jury;  and 
so  wherever  there  are  records  or  other  undisputed  docu- 
ments to  determine  the  amount  due  (2). 

[■•■38]  *(1)  Vide  Hanna  v.  Pegg,  Vol.  I.  of  these  Rep.  181,  183.  In  an 
action  of  false  imprisonment,  the  defendant  attempted  to  justify  the 
arrest  on  a  suspicion  of  forgery,  and  stated  in  his  plea  tliat  the  plaintiff 
was  srispiciously  iiossessed  of  a  note  and  disposed  of  it  in  a  suspicions  man- 
ner, and  in  a  suspicious  manner  left  England  and  went  to  Scotland.  Held, 
that  the  plea  was  too  general ;  that  the  causes  of  suspicion  ought  to  have 
been  set  forth  in  certainty.  Mure  v.  Kage,  4  Taunt.  34.  Vide  1  Chitt.  PI. 
217,  241 ;  Gould,  53;  Harrodv.  Barretto,  1  Hall,  155,  164;  Starbuck  v.  Mur- 
ray, 5  Wend.  148,  159. 

(2)    Vide  Tannehill  v.  Thomas,  Vol.  I.  of  these  Rep.  144,  and  note.     R.  C. 
1831,  p.  408. 


Reno  and  Another  v.  Hollowell. 

Pleading — Duplicity. — Covenant  on  an  obligation  for  the  payment  of 
money.  Plea  of  payment  and  a  release;  which  release  the  plaintiff  had 
since  destroyed.  Replication,  that  the  plaintiff  had  not  destroyed  the 
release.  Held,  that  the  plaintiff,  not  having  specially  demurred  to  the 
plea  for  duplicity,  as  he  might  have  done,  was  bound  to  answer  all  its 
parts  ;  and  that  the  replication,  therefore,  not  denying  the  payment,  was 
insufficient  (a). 

ERROR  to  the  Jackson  Circuit  Court. 

Scott,  J. — Hollowell  declared  against  Reno  and  Moore 
in  covenant  on  an  obligation  for  a  sum  of  money.  The 
defendants  pleaded  that  they  had,  before  the  commence- 
ment of  the  suit,  paid  to  the  plaintifl'  the  full  amount  of 
the  said  writing  obligatory,  together  with  all  interest, 
which  the  plaintiff  accepted  in  full  satisfaction;  and  that 

(a)   See  12  Ind.  174. 

(44) 


MAY  TERM,  1827.  38-39 

Harper  v.  Ragan,  Agent,  &c. 

the  plaintiff  executed  and  delivered  to  them  a  release  of 
the  said  writing  or  covenant,  which  release  he,  afterwards, 
forcibly  wrested  out  of  their  hands  and  possession  and 
tore  it  in  pieces.  The  plaintiff  replied,  that  he  did  not 
forcibly  wrest  and  tear  in  pieces  the  said  supposed  release, 
as  said  defendants  had  alleged.  There  was  a  demurrer 
to  this  replication,  joinder,  and  judgment  for  the  plain- 
tiff 

This  plea  sets  up  two  distinct  matters  of  defence,  pay- 
ment, and  a  release,  either  of  which  alone,  if  well  pleaded, 
would  be  a  sufficient  bar  to  the  action.  The  plaintiff 
might  have  objected  to  it,  by  special  demurrer,  for  dupli- 
city;  but  not  having  done  so,  he  was  bound  to  answer  all 
its  parts.     5  Bac.  Abr.  444,  5;   1  Chitt.  513;  1  Vent.  272 

This  replication  does  not  deny  the  payment,  wdiich  is 
material.     It  is,  therefore,  substantially  defective,  and  the 

demurrer  ought  to  have  been  sustained. 
[*39]        ^Per  Curiam. — The  judgment  is  reversed,  and 
the  proceedings  subsequent  to  the  plea  are  set  aside 
with  costs.     Cause  remanded,  &c. 
Braman,  for  the  plaintiffs. 
Nelson,  for  the  defendant. 

(1)  If,  instead  of  demurring  for  duplicity,  the  opposite  party  passes  the 
fault  by  and  pleads  over,  he  is,  in  that  case,  bound  to  answer  each  matter 
alleged  ;  and  has  no  right,  on  the  ground  of  the  duplicity,  to  confine  him- 
self to  any  single  part  of  the  adverse  statement.     Steph.  on  PI.  295. 


Harper  v.  Ragan,  Agent,  &c. 

Agent — Right  of  Action  by — When. — The  defendant  had  signed  a  sub- 
scription paper,  promising  to  pay  a  certain  sum  of  money  towards  defray- 
ing the  expenses  of  erecting  the  public  buildings  at  Connersville,  pro- 
vided a  new  county  should  be  established,  and  Connersville  be  made  the 
seat  of  justice — the  money  to  be  paid  into  the  hands  of  any  person  whom 
the  board  of  commissioners  of  the  new  countv  should  authorize  to  receive 

(45) 


^0-40       srPREME  COURT  OF  INDIAXA. 

Harper  v.  Kagan,  Agent,  &c. 

it.  Held,  that  the  county  agent,  having  no  legal  or  beneficial  interest  in 
the  contract,  could  not  sue  upon  it  in  his  own  name  (a). 

Same. — If  the  agent  had  been  specially  appointed  by  the  commie^ionerB  to 
receive  the  money,  M-hich  was  to  be  paid  to  any  person  thus  appointed, 
that  circumstance  would  not  have  authorized  a  suit  in  his  own  name. 

Semble,  that  if  one  person  promise  another  for  the  benefit  of  a  third,  tha 
third  person  may  sue. 

ERROR  to  the  Fayette  Circuit  Court. 

Blackford,  J. — Ragan,  as  agent  of  the  county  of  Fay. 
ette,  brought  au  action  of  debt  against  Harper,  upon  a 
subscription  paper,  in  which  the  defendant  promised  in 
writing  to  pa}'  75  doUars  towards  defraying  the  expenses 
of  erecting  the  public  buildings  at  Connersville,  provided 
a  new  county  should  be  established,  and  Connersville  be 
made  the  seat  of  justice:  the  money  to  be  paid  into  the 
hands  of  any  person  whom  the  board  of  commissioners 
of  the  new  county  should  authorize  to  receive  it.  The 
declaration  avers  the  establishment  of  the  new  county  of 
Fayette,  and  of  the  seat  of  justice  at  Connersville;  also, 
the  appointment  of  the  plaintiff,  by  the  commissioners, 
agent  for  the  county,  and  notice  of  the  premises  to  the 
defendant.  General  demurrer  to  the  declaration,  and 
judgment  for  the  plaintiff  below. 

The  only  question,  presented  b}'  the  parties  in 
["^"40]  this  cause,  for  *our  consideration  is,  whether  the 
agent  of  the  county  is  the  proper  person  to  sue  on 
this  instrument  of  writing.  There  is  nothing  in  the  stat- 
ute authorizing  the  appointment  of  a  county  agent,'which 
gives  him  specially  any  authority  to  sue,  in  his  own  name, 
for  a  debt  of  this  kind  due  to  the  county.  The  right, 
therefore,  of  Ragan,  as  agent  of  the  count}',  to  sue  in  his 
own  name  in  this  case,  depends  upon  general  principles ; 
and  to  determine  it  correctly,  we  must  ascertain  whether 
he  has  such  an  interest  in  the  contract,  as  justiiies  the 
suit.  His  being  general  agent  of  the  county  merely,  will 
not  do.     Agents  and  attorneys,  authorized  to  collect  debts 

(«)  3  Blkf.  339  ;  5  Jd.  69 ;  6  Id.  317  ;  3  Ind.  373,  508. 

(46) 


MAY  TERM,  1827.  40-41 


Harper  v.  Kagan,  Agent,  &c. 


due  to  others,  have  not  the  interest  of  the  contract,  and 
can  not  sue  in  their  own  names,  but  only  in  the  names  of 
their  principals.  Jones  v.  Barfs  Executors,  1  Hen.  & 
Munf.  471 ;   Gann  v.  Canti/ie,  10  Johns.  Rep.  387. 

Supposing  him  to  have  been  specially  appointed  by  the 
commissioners  to  receive  this  money,  which  was  to   be 
paid  to  any  person  thus  appointed,  that  circumstance,  it 
is  conceived,  would  not  authorize  this  suit.     In  that  case, 
Ragan  would  be  considered  only  as  the  medium  through 
which  the  money  was  to  be  paid  to  the  county,  not  as  the 
person  beneficially  interested.     To  this,  the  case  of  Pig- 
gott  V.  Thompson,  3  Bos.  &  Pull.  147,  may  be  cited.    There 
certain    persons  were   appointed,   by   act  of  parliament, 
commissioners  for  draining  lands,  and  were  empowered 
to  erect  toll  gates.     They  let  the  tolls  to  a  person  who 
signed  this  instrument  of  writing:    "June  23rd,  1798. 
Now  to  be  let  the  several  tolls  of  Burnt  Fen  first  district, 
with  the  toll  house.     June  23rd,  1798—1  do  hereby  ac- 
knowledge to  have  hired  the  above  tolls  for  three  years 
by  private  contract,  at  one  hundred  and  forty -five  pounds 
per  annum,  to  be  paid  to  the  treasurer  of  the  commission- 
ers at  his  house  in  Ely,  by  twelve  equal  monthly  pay- 
ments in  each  year:  the  first  payment  to  begin  and  be 
made  on  the  24th  day  of  July  next."     The  treasurer,  upon 
this  contract,  brought  suit.     At  the  date  of  the  contract, 
and  at  the  time  of  the  trial,  he  was  treasurer  to  the  com- 
missioners, appointed  under  the  act  of  parliament,  with 
an  annual  salary.     The  Court  held,  that  the  action  would 
not  lie  in  the  name  of  the  treasurer;  and  that  the  com- 
missioners alone  could  sue;  that  the  contract  was  with 
them,  to  pay  to  their  treasurer,  not  for  his,  but  for  their 

benefit. 
[*41]  The  same  doctrine  has  been  heretofore  recog- 
nized by  this  Court.  A  board  of  commissioners  sued 
a  county  collector  for  not  paying  over  the  taxes  collected. 
It  was  objected,  that  as  it  was  the  duty  of  the  collector 
to  pay  the  taxes  to  the  county  treasurer,  the  treasurer 

(47) 


41  SUPREME  COURT  OF  INDIANA. 

Harper  v.  Ragan,  Agent,  &c. 

not  the  commissioner,  should  have  sued.  The  Court 
held  the  action  to  be  rightly  brought.  The  money  being 
due  the  county,  the  commissioners,  by  the  express  words 
of  the  statute,  were  the  proper  persons  to  sue.  Board  of 
Commissioners  of  Gibson  County  v.  Harrington,  November 
term,  1823  (1). 

In  the  case  now  before  the  Court,  the  defendant  prom- 
ised to  pay  a  certain  sum,  into  the  hands  of  any  person 
whom  the  commissioners  should  appoint  to  receive  it 
towards  defraying  the  expenses  of  erecting  the  publie 
buildings,  upon  certain  conditions,  the  performance  of 
which  is  averred.  We  can  not  perceive  how  the  legal  or 
beneficial  interest  of  this  promise  can  be  supposed  to 
exist  in  the  county  agent.  It  is  not  the  case  of  one  per- 
son promising  another  for  the  benefit  of  a  third :  there 
perhaps  the  third  person  may  sue,  though  the  cases  are 
not  uniform  as  to  that ;  nor  does  it  come  within  the  ex- 
ceptions to  the  general  rule  like  some  cases  of  factors, 
brokers,  &c.  No  consideration  passed  from  the  plaintiff, 
no  promise  was  made  to  him,  nor  to  another  for  his  ben- 
efit. It  is  merely  the  case  of  a  conditional  promise  to 
pay  to  the  county,  through  the  medium  of  some  person 
to  be  authorized  to  receive  it,  a  certain  sum  of  money, 
not  for  the  benefit  of  that  person,  but  for  the  exclusive 
benefit  of  the  county. 

The  Court  is  therefore  of  opinion,  that  this  is  a  con- 
tract, if  valid,  in  which  the  county  agent  has  no  interest, 
legal  or  beneficial,  which,  upon  general  principles,  can 
enable  him  to  sue  in  his  own  name;  and  as  he  is  not  spe- 
cially authorized  by  the  statute  thus  to  sue  in  such  cases, 
it  follows  that  this  action,  in  the  name  of  the  agent  can 
not  be  supported. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 

Wick,  for  the  plaintiff. 

Smith,  for  the  defendant. 

(1)   Vol.  1  of  these  Rep.  260. 

(48) 


MAY  TERM,  1827.  42 


Harrison  and  Another  v.  Ferguson. 


p42]      ^Harrington  and  Another  v.  Ferguson. 

Bastardy — Execution — Practice. — An  order  by  the  Court  of  tiliation 
and  bastardy,  may  be  enforced  by  scire  facias  or  debt  on  the  order  against 
the  putative  father,  or  on  the  recognizance  against  those  who  have  en- 
tered into  it,  in  the  name  of  the  state,  on  the  rehition  of  the  party  enti- 
tled (a). 

Same — Description  of  Writ. — The  scire  facias  or  declaration,  in  such 
case,  must  describe  the  cause  of  action  of  the  party  claiming,  show  by 
what  authority  he  has  had  the  care  of  the  child,  and  why  he  is  entitled 
to  the  benefit  of  the  order  for  maintenance  (6). 

APPEAL  from  the  Gibson  Circuit  Court. 

Blackford,  J. — This  was  a  motion  by  Ferguson,  in  the 
Circuit  Court,  for  judgment  against  Charles  &  William 
Harrington.  There  was  no  process  nor  pleadiugs ;  and 
of  course,  there  is  no  description  on  the  record,  by  the 
plaintiff,  of  his  cause  of  action.  It  appears,  by  a  bill  of 
exceptions,  that  Ferguson  produced  an  order  of  the  same 
Court  of  September  term,  1818,  against  Charles  Harring- 
ton, to  the  followino;  effect:  That  he  was  the  father  of  a 
bastard  child;  that  he  should  pay  the  mother  30  dollars 
in  30  days,  and  pay  annually  for  the  six  succeeding  years, 
20  dollars,  as  the  Court  should  direct,  for  the  mainte- 
nance of  the  child,  and  enter  into  recognizance,  with 
surety,  for  the  performance  of  the  order.  It  appears 
further,  that  a  recognizance  was  entered  into  by  William 
Harrington.  The  Circuit  Court,  upon  this  motion,  with 
this  order  before  them,  gave  judgment  against  Charles 
Harrington,  putative  father,  and  William  Harrington, 
the  recognizor,  for  120  dollars,  the  amount  of  the  annual 
payments  mentioned  in  the  order. 

The  mode  of  proceeding  in  cases  of  bastardy,  until  the 
order  by  the  Court  of  filiation  and  bastardy,  is  stated  in 
Woodkirk  v.  Williams,  Nov.  term,  1820  (1).  This  case 
presents  the  question,  as  to  the  mode  of  enforcing  the 
order.     That  may  be  done  by  scire  facias  or  debt,  upon 

(a)  4  Blkf.  316 ;  7  Blkf.  558.  (6)  5  Blkf.  166. 

YoL  II.— 4       (49) 


42-43       SUPREME  COURT  OF  INDIAIs^A. 

Harvey  v.  Crawford  and  Others. 

the  order,  against  the  putative  father,  or  upon  the  recog- 
nizance against  those  who  have  entered  into  it,  in  the 
name  of  the  state,  on  the  relation  of  the  party  entitled. 
The  scire  facias,  or  declaration,  must  describe  the  cause  of 
action  of  the  party  claiming,  show  by  what  authority  he 
has  had  the  care  of  the  child,  and  why  he  is  entitled  to 
the  benefit  of  the  order  for  maintenance.  An  op- 
[*43]  portunity  is  thus  given  to  *the  defendants  to  make 
their  defence,  if  they  have  any,  and  the  cause  pro- 
ceeds in  the  ordinary  mode.  That  an  action  of  debt  lies 
on  such  an  order,  made  by  justices  of  the  peace,  and  that 
the  order  is  conclusive  against  the  defendants,  whilst  un- 
reversed, is  decided  in  Wallsworth  v.  Mead,  et  al.,  9  Johns. 
R.  367. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 

Hall,  for  the  appellants. 

Howk,  for  the  appellee. 

(1)  Vol.  1  of  these  Kep.  110. 


Harvey  i'.  Crawford  and  Others. 

UsuKY — Belief — Equity  Practice. — The  payee  of  a  note,  who  has  sued 
the  makers,  can  not  demur  to  a  bill  in  Chancery,  filed  by  the  latter,  be- 
cause it  charges  the  note  to  be  usurious  and  prays  a  discovery,  if  the 
complainants  have  brought  the  principal  and  legal  interest  into  Court. 

Interest — Calculation. — If  a  new  contract  be  made  respecting  money 
previously  lent  and  a  new  security  be  given,  the  interest  should  be  cal- 
culated up  to  the  time  of  the  new  contract  and  added  to  the  principal ; 
but  this  calculation  is  not  to  be  made  at  every  agreement  for  forbearance 
of  payment,  where  no  change  is  made  in  the  securities. 

Same — Principal — Application  of  Payment. — Whenever  a  sufficient 
payment  is  made,  the  interest  must  be  first  discharged  ;  but  if  the  pay- 
ment be  less  than  the  interest,  the  balance  of  the  interest  does  not  become 
principal  (a). 

Costs — Adjudication  of. — The  bill  in  the  above-named  cause  having  been 
taken  for   confessed    and  a  decree  rendered  enjoining  the  payee's  pro- 

(a)  See  3  Blkf.  18,  347  ;  16  Ind.  147  ;  28  Id.  488  ;  57  Id.  248. 

(50) 


MAY  TERM,  1827.  43-44 

Plarvey  v.  Crawford  and  Others. 

ceedings  at  law,  held,  that  costs  might  be  given  to  complainants.  Held, 
also,  that  the  decree  should  secui-e  to  the  payee  his  costs  in  the  suit  at 
law. 

ERROR  to  the  Wayne  Circuit  Court. 

HoLMAN,  J. — Harvey  brought  an  action  of  debt  against 
Crawford  and  others  on  a  promissory  note.  The  defend- 
ants tiled  a  bill  in  chancery,  charging  that  the  note  was 
given  on  an  usurious  contract;  bringing  into  Court  the 
money  said  to  be  due  for  principal  and  interest ;  and  pray- 
ing a  discovery  of  the  usury,  an  injunction  of  the  pro- 
ceedings at  law,  and  relief.  To  this  bill  Harvey  demur- 
red. The  principal  causes  of  demurrer  were,  first,  that 
the  disclosure  of  usury,  if  any,  would  subject  him  to  a 
criminal  prosecution ;  and,  secondly,  that  all  the  money 
due  is  not  brought  into  Court.  The  first  of  these  causes 
is  removed  by  the  bringing  of  the  principal  and  interest 

into  Court.  The  only  penalty  for  usury,  by  the  act 
[*44]    of  assembly,  that  was  in  force  *at  that  time  is  the 

forfeiture  of  the  interest.  Stat.  1818,  p.  87  (1).  If 
the  defendant  can  not  answer  without  confessing  usury, 
he  may  take  the  money  out  of  Court,  and  thereby  receive 
all  to  which  he  is  equitably  entitled ;  and  by  failing  to  an- 
swer will  subject  himself  to  no  forfeiture.  K  he  can  deny 
the  charge  of  usury,  he  is  at  liberty  to  do  so.  So  that  in 
either  case  he  is  subjected  to  nothing  but  the  loss  of  an 
illegal  advantage.  On  the  second  ground  of  demurrer, 
we  discover  that  the  complainants  and  the  defendant  have 
adopted  dififerent  modes  of  calculating  interest.  The  true 
method  of  calculation  we  conceive  to  be  this  :  that  where- 
ever  a  new  contract  is  made  about  the  money  loaned,  and 
a  new  note,  or  new  security  given,  the  interest  should  be 
calculated  up  to  the  time  of  such  new  contract,  and  added 
to  the  principal.  But  that  this  calculation  is  not  to  be 
made  at  every  agreement  for  further  forbearance  of  pay- 
ment, if  no  change  is  made  in  the  securities.  And  that 
whenever  a  payment  is  made,  the  interest  must  be  dis- 

(51) 


44-45       SUPREME  COURT  OF  mDIANA. 


Harvey  v.  Crawford  and  Others. 


charged  first ;  but  if  a  sum  less  than  the  interest  is  paid, 
the  balance  of  the  interest  does  not  thereby  become  prin- 
cipal (2).  Adopting  this  mode  of  calculation,  we  perceive 
that  the  sum  paid  into  Court,  on  the  most  exact  calcula- 
tion, will  cover  all  the  principal  and  interest  really  due, 
except  about  two  dollars;  a  sum  too  small,  in  a  long  and 
often  varied  contract  for  several  hundred  dollars,  to  au- 
thorize the  reversal  of  a  decree. 

When  the  demurrer  in  this  case  was  overruled,  the  de- 
fendant refused  to  answer;  the  bill  was  taken  for  con- 
fessed; and  the  Circuit  Court  decreed  a  perpetual  injunc- 
tion of  the  proceedings  at  law,  and  gave  the  complainants 
a  decree  for  costs.  As  this  was  a  matter  originally  cog- 
nizable in  a  Court  of  chancer}',  and  was  not  taken  into  a 
Court  of  law  by  the  complainants,  there  was  nothing  in 
it  to  prevent  the  Court  of  chancery  from  granting  the 
necessary  relief.  Costs  in  chancery  are  generally  a  mat- 
ter of  discretion ;  and  we  do  not  discover  but  that  the 
whole  circumstances  of  this  case  may  warrant  the  decree 
for  costs. 

One  thing  however  remains.  Harvey  had  proceeded 
at  law  to  recover  a  sum  of  money  for  which  he  had  a 
legal  demand.  The  principles  of  equity  would  not  inter- 
fere to  stay  his  further  proceedings  until  the  sum  really 
due  was  paid  into  Court.  The  costs  at  law  were  there- 
fore a  matter  of  right ;  and  nothing  has  transpired  in 
the  proceedings  in  chancery  to  show  that  he  was 
[*45]  *not  equitably  entitled  to  them;  for  the  same  rule 
that  requires  the  complainants  to  do  equity,  by 
bringing  the  principal  and  legal  interest  into  Court, 
would  require  them  to  pay  the  costs  that  had  already 
accrued  in  attempting  to  recover  the  mone}'  thus  admit- 
ted to  be  due. 

Per  Curiam. — The  decree,  except  so  much  thereof  as 
perpetually  enjoins  the  recovery  of  the  costs  at  law,  is 
affirmed.     That  part  of  the  decree,  which  enjoins  the  re- 

(52) 


MAY  TERM,  1827.  45-46 

Capp  I'.  Gilman. 

CO  very  of  those  costs,  is  reversed.     Cause  remanded,  &c. 
Rariden,  for  the  plaintiff. 
Smith,  for  the  defendants. 

(1)  R.  C.  1824,  pp.  227,  228,  accord.  In  1831  this  law  was  changed,  and 
the  parties  were  authorized  to  make  a  written  agreement  for  the  payment 
of  interest  at  any  rate  they  pleased.  In  the  absence  of  any  such  agreement, 
6  per  cent,  per  ann.  was  the  legal  rate.  R..  C.  1831,  p.  290.  In  1833  the  law 
was  again  changed.  The  legal  rate  of  interest,  if  there  be  no  written  agree- 
ment on  the  subject,  is  now  6  per  cent.  per.  ann.  The  parties  may  agree  in 
writing  for  a  higher  rate,  not  exceeding  10  per  cent,  per  ann.  The  penalty, 
on  conviction  by  ^presentment  or  indictment,  for  receiving  more  than  10  per 
cent,  per  ann.  is  a  fine  to  the  state,  for  the  use  of  the  county  seminary,  in 
double  the  amount  of  the  excess  of  interest  above  10  per  cent,  per  ann.  so  re- 
ceived.    Stat  1833,  p.  43. 

(2)  Accord,  Dean  v.  Williams,  17  Mass.  417;  Wasson  v.  Gould,  May  term, 
1832,  post. 


Capp  v.  Gilman. 

Judgment — Pleading. — In  an  action  on  a  judgment,  profert  of  the  record 
is  unnecessary  ;  the  provt  patet  per  recordum  is  sufficient  even  on  special 
demurrer. 

Practice — Oyer — Record. — Oyer  of  a  record  is  never  granted  (a). 

Pleading— Real  Party  Plaintiff. — If  the  plaintiff  name  himself  as  ad- 
ministrator, in  a  suit  on  a  judgment  recovered  in  his  own  name  on  prom- 
ises made  to  himself,  no  profert  of  the  letters  of  administration  is  neces- 
sary ;  the  word  administrator  may  be  considered  as  surplusage,  or  as  a 
descriptio  persona?  (b). 

Pleading — Assumpsit. — The  declaration,  in  such  case,  may  be  in  the  de- 
bet and  detinet. 

Same — Foreign  Judgment. — If  the  county  and  circuit,  in  which  an  action 
on  the  judgment  of  a  Court  in  another  state  is  brought,  be  named  in  the 
margin  of  the  declaration,  no  objection  can  be  made  for  want  of  a  venue  (c). 

ERROR  to  the  Franklin  Circuit  Court.— This  was  an 
action  of  debt.     The  declaration,  so  far  as  respects  the 
points  noticed  by  the  Court,  is  as  follows :    Frank- 
[*46]    lin  Circuit,  Franklin  county,  *viz.  Benjamin  I.  Gil- 
man, deceased,  complains  of  Jacob  G,  Capp,  &c., 

(a)  See  post  82 ;  5  Blkf.  360.   (6)  See  9  Ind.  260.   (c)  See  4  Blkf.  179, 

(53) 


46  SUPREME  COURT  OF  INDIANA. 

Capp  V.  Gilman. 

of  a  plea  that  he  rendered  unto  him  the  sum  of  686  dol- 
lars, which  to  him  he  owes  and  from  him  unjustly  de- 
tains. For  that  whereas  the  said  plaintiff'  heretofore, 
to-wit,  at  the  term  of  August,  1824,  in  the  Court  of  Com- 
mon Pleas  of  Hamilton  county  and  state  of  Ohio,  by  the 
judgment  of  said  Court,  recovered  against  the  said  Jacob 
G.  Capp  the  sum  of,  &c.,  which  was  adjudged  to  the  said 
plaintiff",  in  the  said  Court,  for  his  damages  which  he  has 
sustained,  as  well  by  reason  of  the  not  performing  cer- 
tain promises  and  undertakings  to  the  said  plaintiff'  by 
the  said  defendant  then  lately  made,  as  for  his  costs,  &c., 
whereof  the  said  Jacob  G.  Capp  is  convicted,  as  by  the 
record  and  proceedings  thereof  now  remaining  in  the  said 
Court  of  Common  Pleas  of  Hamilton  county,  state  of 
Ohio,  more  fully  appears,  &c. ;  which  said  judgment  still 
remains  in  full  force,  &c.  Whereby  an  action,  &c.  Yet, 
&c.  To  the  damage,  &c.  To  this  declaration  the  defend- 
ant specially  demurred.  The  causes  of  demurrer  are,  Ist, 
there  is  no  profert  of  the  record  on  Avhich  the  action  is 
founded  ;  2dly,  there  is  no  profert  of  the  letters  of  admin- 
istration ;  3d]y,  the  cause  of  action  is  not  within  the  juris- 
diction of  the  Court;  4thly,  the  suit  is  in  the  debet  and 
detinet. 

Judgment  on  the  demurrer  for  the  plaintiff'  as  admin- 
istrator as  aforesaid. 

HoLMAN,  J. — The  action  was  brought  by  Gilman  in  the 
Franklin  Circuit  Court,  on  a  judgment  obtained  in  the 
Court  of  Common  Pleas  of  Hamilton  county,  state  of 
Ohio.  The  declaration  states  the  recovery  of  the  judg- 
ment, as  by  the  record  thereof,  now  remaining  in  the  said 
Court  of  Common  Pleas,  more  fully  appears.  This- is  suffi- 
cient even  on  special  demurrer.  Oj^er  of  a  record  is 
never  granted.  Bex  v.  Amery,  1  T.  R.  149  (1).  The  sec- 
ond and  fourth  causes  of  demurrer  are  removed  b}'  a 
slight  view  of  the  whole  declaration.     The  plaintiff'  n^mes 

(54) 


MAY  TERM,  1827.  46-47 

Capp  r.  Gilmaii. 

himself  as  administrator  unuecessarily.  He  sues  on  a 
judgment  recovered  in  his  own  name,  on  promises  made 
to  himself.  The  word  administrator  may  therefore  be 
considered  as  surplusage,  or  as  a  descriptio  person ce.  The 
same  answer  may  be  given  to  the  objection,  the  judg- 
ment is  rendered  for  the  plaintiff  as  administrator  (2). 

The  only  point  on  which  we  have  hesitated,  is 
[*47]  the  third  *cause  of  demurrer;  the  want  of  a 
venue.  The  necessity  of  a  venue  is  to  give  juris- 
diction, and  to  show  from  whence  the  jury  are  to  come. 
Here  the  declaration  contains '^  Franklin  county  and  cir- 
cuit,'' as  a  marginal  venue,  and  proceeds  to  show  that  the 
defendant  was  indebted  to  the  plaintiff,  by  virtue  of  a 
judgment  of  a  Court  of  record  in  the  state  of  Ohio.  By 
virtue  of  this  judgment,  the  defendant  became  indebted 
to  the  plaintiff,  and  might  be  sued  in  any  place  where  he 
could  be  found.  Franklin  Circuit  Court  therefore  had 
jurisdiction  of  the  case;  as  it  must  be  intended  that,  if 
h.e  was  found  in  the  Franklin  Circuit,  he  was  there  in- 
debted to  the  plaintiff.  This  is  rendered  as  certain  as  if 
the  marginal  venue  was  repeated,  or  a  reference  made  to 
it,  in  the  body  of  the  declaration.  The  Court  in  which 
the  judgment  was  obtained  is  properly  set  out,  and  to 
have  added  under  a  videlicit  that  it  was  obtained  in  the 
Franklin  Circuit  was  unnecessar}^,  as  the  record  is  not 
tried  by  a  jury  but  by  the  Court.  We  are  therefore  of 
opinion  that  the  venue  in  the  margin  is  at  any  rate  suffi- 
cient.    See  1  Chitt.  on  PI.  269,  281  (3). 

Per  Curiam. — The  judgment  is  affirmed,  with  5  j^er  cent. 
damages  and  costs. 

Caswell,  for  the  plaintiff. 

(1)  Vide  Harlow  v.  Bechtle,  Vol.  1  of  these  Eep.  237. 

(2)  Vide  Savage  v.  Meriam,  Vol.  1  of  these  Eep.  176  and  note ;    Helm  v. 
VanVleel,  Ibid.  342. 

(3)  The  county  in  the  margin  of  the  declaration  held  a  sufficient  venue, 
on  special  demurrer.     Duncan  v.  Passenger,  8  Bing.  355. 

(55) 


47-48        SEPREME  COURT  OF  INDIANA. 


Mills  and  Another,  Administrators,  v.  Cuykendall,  Administrator. 


Mills  and  Another,  Administrators,  v.  Kuykendall,  Ad- 
ministrator. 

Bill  of  Exchange — Payable  out  of  certain  funds. — A  bill  drawn  on 
an  administrator  in  these  words,  "  Please  to  settle  80  dollars  out  of  my 
part  of  the  estate,  with  Nathan  Harness,  and  this  my  order  shall  be  your 
receipt  for  the  same," — is  not  a  valid  bill  of  exchange ;  being  payable 
only  out  of  a  particular  fund. 

Same — Pleading. — A  declaration  against  the  acceptor  of  such  a  bill,  de- 
pending alone  for  its  support  upon  the  bill  and  acceptance,  contains  no 
cause  of  action,  whether  the  acceptance  be  absolute  or  conditional. 

[•■■48]  Administrator^ — Promise  of — Liability  of  Estate. — *The  ad- 
ministrator, on  whom  the  above-named  bill  was  drawn,  promised 
the  holder  if  he  would  retain  the  bill,  it  should  be  paid  whenever  a  cer- 
tain farm  should  be  sold  ;  Held,  that  as  the  consideration  of  this  promise 
arose  subsequently  to  the  intestate's  death,  no  action  would  lie  against 
the  administrator  on  the  promise,  so  as  to  charge  the  estate  of  the  intes- 
tate. 

Same — Pleading — Statute  of  Frauds. — The  promise  of  an  administra- 
tor, to  pay  a  debt  of  the  intestate,  need  not  be  averred  in  the  declaration 
to  be  in  writing  ;  the  statute  of  frauds  applying  to  the  proof  and  not  to 
the  declaration  (a). 

APPEAL  from  the  Knox  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  assumpsit  by 
Kuykendall,  administrator  of  Nathan  Harness,  against 
Mills  and  Harness,  administrators  of  Adam  Harness. 
The  declaration  contains  two  counts.  In  the  first  count, 
the  plaintiff  avers  that  Michael  Harness,  one  of  the  heirs 
of  Adam  Harness,  deceased,  being  entitled  to  100  dollars 
from  the  defendants,  administrators  of  the  estate,  drew  an 
order  in  writing  "for  80  dollars  in  favor  of  Nathan  Har- 
ness, for  value  received  from  him,  directed  to  the  defend- 
ants, administrators,  as  follows:  "Please  to  settle  80  dol- 
lars out  of  my  part  of  the  estate,  with  Nathan  Harness, 
and  this  my  order  shall  be  your  receipt  for  the  same." 
The  plaintilf  further  avers  that  his  intestate,  Nathan  Har- 
ness, presented  this  order  to  the  defendants,  administra- 

(«)  See  8  Blkf.  105-108  ;  3  Ind.  213 ;  6-  Id.  53 ;  21  Id.  433  ;  8  Blkf.  24  ;  4 
Ind.  488 ;  27  2d.  277 ;  45  Id.  576. 

(56) 


MAY  TERM,  1827.  48-49 

Mills  and  Another,  Administrators,  v.  Kuykendall,  Administrator. 

tors ;  and  that  they  accepted  the  same  by  parol.  By  means 
whereof  they  became  liable,  &c.,  and  promised  to  pay, 
&c.  The  second  count  is  the  same  Avith  the  first,  except 
that  it  alleges — that  the  defendants,  administrators,  re- 
fused to  accept  the  order,  and  requested  the  payee  to  keep 
it,  promising  to  pay  it  if  they  should  sell  a  certain  farm 
belonging  to  the  estate ;  that  the  payee  did  keep  the  or- 
der; and  that  the  defendants  had  sold  the  farm.  By 
means  whereof  the  administrators,  &c,,  became  liable,  &c., 
and  in  consideration  thereof,  promised,  &c.  To  the  de- 
claration, there  is  the  common  conclusion  that  the  de- 
fendants, though  often  requested,  &c.,  have  not  paid,  &c. 
The  defendants  pleaded  non  assumpserunt,  and  the  plain- 
tifi"  joined  issue.  The  cause  was  tried,  and  the  jury  found 
for  the  plaintiff  below  80  dollars  in  damages.  The  de- 
fendants moved  for  a  new  trial,  which  was  overruled ; 
and  the  Court  rendered  judgment  on  the  verdict  against 
the  defendants  below,  de  bonis  propriis. 

The  refusal  of  the  Court  to  grant  a  new  trial  in  this 
case  is  one  of  the  errors  assigned.  That  point  mu§t  be 
laid  out  of  the  case.  The  grounds  of  the  motion 
[*49]  for  a  new  trial  are  not  *before  us,  and  we  have  no 
means  of  determining  as  to  the  propriety  of  the  de- 
cision. Copies  of  an  affidavit  of  the  discovery  of  new  evi- 
dence, and  of  a  dedimus  and  deposition,  are  sent  up  by 
the  clerk,  but  hone  of  these  papers  are  made  matter  of 
record,  by  bill  of  exceptions  or  otherwise;  and  we  are 
therefore  obliged  to  pass  them  by  without  notice.  Noth- 
ing appearing  to  the  contrary  on  the  record,  we  are  bound 
to  presume  that  the  motion  for  a  new  trial  was  correctly 
overruled. 

This  cause  turns  altogether  upon  the  question,  whether 
the  declaration  contains  a  sufficient  cause  of  action? 

The  first  count,  in  substance,  is  upon  the  absolute  ac- 
ceptance of  a  bill  of  exchange.  The  writing  accepted  is 
set  out  in  haec  verba  in  the  declaration.  It  is  a  draft  by 
an  heir  upon  the  administrators  to  pay  a  certain  sum  out 

(57) 


49-50       SUPREME  COURT  OF  INDIANA. 

Mills  and  Another,  Administrators,  v.  Kuykendall,  Administrator. 

of  his  part  of  the  estate.  The  bill  is  not  drawn  upon  tlie 
general  credit  of  the  drawer,  but  is  only  a  request  to  pay 
out  of  a  ijarticular  fund.  It  is  not  therefore  a  bill  of  ex- 
change. To  this  there  are  many  authorities.  Thus,  a 
bill  as  follows,  "Sir,  you  are  to  pay  Mr.  Herle  £1,945 
out  of  the  money  in  your  hands,  belonging  to  the  propri- 
etors of  the  Devonshire  Mines,  being  part  of  the  consid- 
eration-money for  the  purchase  of  the  manor  of  West 
Buckland,"  was  held  to  be  no  bill  of  exchange,  because  it 
was  onl}^  payable  out  of  a  particular  fund.  Jenny  v.  Herle, 
Ld.  Raym.  1361.  See  also,  Dmvkes  v.  Lord  de  Loraine,  2 
Bl.  Rep.  782;  3  Wils.  207;  Chitt.  on  Bills,  56.  The  first 
count  therefore  is  bad.  It  depends  alone  for  support 
upon  the  acceptance  of  an  instrument  of  writing,  which 
of  itself  contains  no  cause  of  action. 

With  respect  to  the  second  count.  In  that  is  set  out  a 
conditional  acceptance  of  the  same  bill  that  is  described 
in  the  first  count.  The  averment  is,  that  the  administra- 
tors refused  to  accept  the  writing,  but  requested  the  payee 
to  keep  it,  and  promised  that  if  they  should  sell  a  certain 
farm  of  the  estate,  they  would  pay  the  money  in  the 
writing  mentioned  ;  that  the  payee  accordingly  did  keep 
the  order,  and  that  the  administrators  have  sold  the  farm. 
This  allegation,  so  far  as  the  validity  of  the  declaration 
depends  upon  the  instrument  of  writing  as  a  bill  of  ex- 
change, can  not  have  a  greater  effect  than  the  absolute 
acceptance  of  the  bill  averred  in  the  first  count.  By  the 
terms  of  the  bill,  the  payment  depends  upon  the  sufii- 

ciency  of  a  particular  fund,  and  it  is  therefore,  as 
[*50]    has   been  already  ^observed,  of  no  validity.     Its 

acceptance,  whether  absolute  or  conditional,  can 
not  be  declared  on  as  a  cause  of  action.  To  the  second 
count,  so  far  as  it  is  founded  on  the  bill,  the  following 
passage  from  Chitty  on  Bills  is  applicable  :  "  When  a  bill 
has  been  drawn  on  an  agent  requesting  him  to  pay  a  sum 
of  money  out  of  a  particular  fund,  though  we  have  seen 
that  such  an  instrument  will  be  wholly  void  as  a  bill  of 

m 


MAY  TERM,  1827.  50 

Mills  and  Another,  Administrators,  v.  Kuykendall,  Administrator. 

exchange,  because  the  payment  of  it  depends  upon  a  con- 
tingency ;  yet  if  the  drawee  promises  to  pay  the  amount 
when  he  shall  receive  funds,  and  the  holder  in  conse- 
quence retains  the  bill,  the  amount,  when  received  will 
be  recoverable  from  the  drawee  under  the  common  count 
for  money  had  and  received.''  He  cites  this  case  :  In  as- 
sumpsit, the  first  count  was  against  the  defendant  as  the 
acceptor  of  a  bill  of  exchange,  drawn  by  Admiral  Smith 
on  the  defendant  his  agent ;  the  others  were  the  money 
counts.  The  defendant  was  a  navy-agent,  and  the  bill 
was  as  follows :  Out  of  my  half-pay,  which  will  become 
due  on  the  1st  of  January,  pay  to  Stephens  £15.  This 
was  brought  to  the  defendant,  who  said  he-  had  then  no 
money  of  Admiral  Smith's  in  his  hands,  but  that  he 
would  pay  it  out  of  the  admiral's  money  when  he  re- 
ceived it.  The  defendant  objected  to  the  count  on  the 
bill  as  it  appeared  to  be  not  a  bill  of  exchange,  it  being 
drawn  on  a  particular  fund,  and  not  payable  generally, 
which  was  necessary  to  constitute  a  legal  bill  of  ex- 
change. This  count  was  abandoned  by  the  Solicitor- 
General,  who  put  the  case  on  the  count  for  money  had 
and  received;  and  on  that  count  had  judgment.  Chitt. 
on  Bills,  252.  The  second  count  therefore  in  this  decla- 
tion,  so  far  as  it  is  founded  on  the  bill,  is  equally  objec- 
tionable with  the  first  count. 

If  the  second  count  be  considered  as  depending  for  its 
support,  not  on  the  bill  and  its  conditional  acceptance, 
but  upon  the  promise  stated  to  have  been  made  by  the 
defendants  to  pay  Nathan  Harness  the  debt  due  to  him 
from  Michael,  in  consideration  of  the  keeping  of  the  bill 
by  Nathan  at  -the  defendant's  request,  until  the  farm 
should  be  sold — we  think  that  ground  will  not  support 
the  count.  There,  the  consideration  of  the  promise  arises 
subsequently  to  the  intestate's  death,  and  therefore  if 
sufficient  to  support  the  promise,  it  can  only  charge  the 
defendants   personally,  and  can  only  support  an  action 

(59) 


50-51       SUPREME  COURT  OF  INDIANA. 

Mills  and  Another,  Administrators,  v.  Kuykendall,  Administrator. 

against  them  in  their  individual  capacities  (1). 
[*51]  This  is  not  such  an  action.  It  *is  against  the  de- 
fendants as  administrators.  They  are  not  merely 
named  in  such  a  way,  that  the  term  administrators  may 
be  considered  a  descriptio  personarum.  On  the  contrar}', 
the  defendants  are  charged  throughout  in  their  repre- 
sentative characters.  The  whole  case  shows,  that  the 
object  of  the  plaintiff"  was  to  charge  the  estate  of  the  de- 
ceased, by  obtaining  a  judgment  against  the  administra- 
tors de  bonis  intestati.  The  promise  of  administrators,  on 
a  consideration  originating  subsequently  to  their  intes- 
tate's death,  can  not  sustain  such  an  action.  Whether 
the  consideration,  averred  in  the  second  count,  will  sup- 
port the  promise  to  charge  the  defendants  personally,  we 
give  no  opinion  :  the  case  does  not  require  it.  That  the 
promise  is  not  stated  to  be  in  writing  would  be  no  objec- 
tion, were  the  case  calculated  for  a  judgment  de  bonis pro- 
priis,  as  the  statute  of  frauds  applies  to  the  evidence,  not 
to  the  declaration  (2) ;  but  the  fatal  objection  to  the  count 
is,  that  the  plaintiff  in  his  suit  goes  altogether  against  the 
administrators  in  their  representative  character — against 
the  estate  of  the  intestate,  when,  by  his  own  showing, 
that  estate  has  nothing  to  do  with  his  cause  of  action,  and 
can  in  no  way  be  affected  by  it. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Tabbs,  for  the  appellants. 
Judah,  for  the  appellee. 

(1)  Forth  V.  Stanton,  1  Will.  Saund.  210  and  note  (1). 

(2)  Note  (2)  to  Forth  v.  Stanton,  1  Will.  Saund.  211.  Where  a  thing  is 
originally  made  by  act  of  parliament,  and  required  to  be  in  writing,  it 
must  be  pleaded  with  all  the  circumstances  required  by  the  act,  as  in  the 
case  of  a  will  of  lands,  to  have  been  made  in  writing ;  but  where  an  act 
makes  writing  necessary  to  a  matter,  where  it  was  not  so  at  tlie  common 
law,  as  where  a  lease  for  a  longer  term  than  three  years  is  required  to  be 
in  writing  by  the  statute  of  frauds,  it  is  not  necessary  to  plead  the  thing  to 
be  in  writing,  though  it  must  be  proved  to  be  so  in  evidence.  Anon.  2  Salk. 
519.  Note  (2)  to  Duppa  v.  Mayo,  1  Will.  Saund.  276.  In  an  action  on  a  bill  of 
exchange,  tbe  declaration  averred  that  the  defendant  had  accepted  the  bill, 
but  did  not  aver  the  acceptance  to  be  in  icritiin/.  Held,  that  the  averment 
was  sufficient  on  a  special  demurrer,  altliougji  the  statute  of  1  and  2  Geo.  4 
requires  the  acceptance  to  be  in  tiriliug.     Chalie  v.  Belshaw,  6  Bing.  529. 

(60) 


MAY  TERM,  1827.  52 


Eaton,  Associate  Judge,  &c.,  v.  Benefield  and  Another. 


[*52]    *Eaton,.  Associate  Judge,  &c.,   v.  Benefield    and 

Another. 

Administrators — Sureties — Remedy  of  Creditors. — The  statute  requir- 
ing executors  and  administrators  to  give  bond  with  surety,  imposes  on 
them  no  new  duties ;  but  it  gives  an  additional  remedy  to  creditors,  leg- 
atees, and  persons  entitled  to  distribution. 

Same. — A  creditor  can  not  sue  on  an  administration-bond,  until  after  he 
has  obtained  judgment  against  the  estate  of  the  intestate. 

Same. — A  legatee,  distributee,  or  creditor,  until  his  claim  has  been  exhib- 
ited and  established  according  to  law,  and  the  payment  thereof  has  been 
refused  by  the  executor  or  administrator,  is  not  a  party  injured  within 
the  meaning  of  the  statute,  and  can  have  no  suit  for  his  benefit  on  "the 
executor's  or  administrator's  bond  (a). 

Same — Pleading — Relator. — The  declaration  on  a  bond  of  an  executor 
or  administrator,  must  show  the  relator  to  be  a  creditor,  legatee,  or  dis- 
tributee. 

APPEAL  from  the  Sullivan  Circuit  Court. 

Scott,  J. — To  an  action  of  debt  on  an  administration- 
bond,  the  defendants  pleaded  plene  administravit ;  to 
which  plea  the  plaintiff  demurred  ;  and  there  was  a  judg- 
ment for  the  defendants. 

The  action  is  brought  in  the  name  of  John  H.  Eaton, 
associate  judge  of  Sullivan  county,  on  the  relation  of 
Jesse  Hadden  and  Henry  Harper.  We  are  not  informed 
by  the  record,  who  these  relators  are,  or  in  what  capacity 
they  come  before  the  Court;  whether  as  legatees,  as  per- 
sons entitled  to  distribution,  or  as  creditors  of  the  de- 
ceased ;  or  whether  they  have  any  interest  at  all  in  the 
estate.  It  was  decided  by  this  Court,  in  the  case  of  San- 
ger v.  The  Associate  Judges  of  Dearborn,  at  the  May  term, 
1823,  that  in  such  an  action  as  the  present,  it  must  appear 
that  there  was  a  relator  who  had  a  beneficial  interest  in 
the  suit  (1).  It  was  not  decided,  nor  was  it  necessary  to 
decide,  in  that  case,  what  steps  were  requisite,  prior  to 
bringing  suit  on  the  bond,  to  show  the  relator  to  be  bene- 
ficially interested.     Although  the  administrator  may  have 

(a)  See  1  Ind.  105,  538;  31  Id.  444;  15  Id.  104. 

(61) 


52-53       SUPREME  COURT  OF  INDIA:N"A. 


Eaton,  Associate  Judge,  &c.,  r.  Benefield  and  Another. 

violated  the  condition  of  his  Ijond,  and  thereby  laid  him- 
self and  his  sureties  liable  to  the  party  injured,  yet  he  is 
not  liable  to  all  the  world ;  nor  is  he  liable  even  to  credit- 
ors or  legatees,  until  they  have  sustained  injury  b}'  his 
■misconduct  or  negligence.  In  England,  no  bond  is  re- 
quired of  an  executor;  and  the  statute,  22  and  23  of  Car. 
2,  which  requires  administrators  to  give  bond  and  secur- 
ity, imposes  no  new  duty  on  the  administrator. 
[^53]  Neither  does  the  ^^statute  of  this  state.  The  duty 
of  executors  and  administrators,  both  here  and  in 
England,  remains  just  as  it  was  before;  but  creditors, 
legatees,  and  persons  entitled  to  distribution,  have  an  ad- 
ditional remedy  for  its  performance.  The  statute  requir- 
ing bond  was  made  for  the  benefit  of  creditors,  legatees, 
and  distributees  of  the  deceased;  bpt  it  would  be  unrea- 
sonable and  unjust,  that  they  should  be  permitted  to  avail 
themselves  of  that  remedy  against  an  innocent  surety,  be- 
fore they  have  shown  the  nature  and  amount  of  their 
claims,  that  assets  to  a  certain  amount  came  to  the  hands 
of  the  administrator,  and  that  he  has  misapplied  or  wasted 
them. 

The  form  of  an  administation-bond  in  England  is  the 
same  as  that  required  by  our  statute;  yet  no  one  ever 
thought  of  claiming  a  judgment  against  an  administra- 
tor de  bonis  propriis,  in  that  country,  before  he  had  ob- 
tained a  judgment  against  the  estate  of  the  deceased. 
After  judgment  obtained  against  the  administrator  de 
bonis  intestati,  there  were  various  methods  of  proceeding 
to  obtain  judgment  against  him  de  bonis  propriis,  which 
we  need  not  now  examine.  All  that  is  necessary  at  pres- 
ent is  to  show  that  no  judgment  could  be  had,  by  a  cred- 
itor, against  an  administrator  de  bonis  propriis^  in  Eng- 
land, until  the  plaintiff  had  first  established  his  claim 
against  the  estate  of  the  intestate  in  a  due  course  of  law. 
Sergeant  Williams  has  given  a  copious  and  satisfactory 
view  of  this  subject,  in  a  note  on  the  case  of  Wheatly  v. 
Lane,  1  Saund.  219,  n.  8. 

(62) 


MAY  TERM,  1827.  58-54 

Eaton,  Associate  Judge,  &c.,  v.  Benefield  and  Another. 

The  administrution-bond  is  joint  and  several.  If  the 
obligors  are  liable  to  a  joint  action,  they  are  liable  also 
to  be  sued  severally;  and  the  judgment  against  them 
whether  joint  or  several  is  de  bonis  propriis.  Thus  not 
only  would  the  administrator  be  liable  to  an  action  and 
judgment  against  his  own  goods,  where  no  judgment  had 
been  obtained,  and  where  possibly  none  ever  could  be  ob- 
tained, against  the  estate  of  the  intestate ;  but  an  inno- 
cent surety  also  might  be  dragged  into  Court  in  a  several 
action  against  himself,  founded  on  an  alleged  claim  against 
the  deceased,  of  the  merits  of  which  he  could  not  be  sup- 
posed to  be  cognizant,  and  against  wdiicli  he  possessed  no 
means  of  defence.  Greenside  v.  Benson,  3  Atk.  248;  Brax- 
ton V.  The  Justices  of  Spotsylvania,  1  Wash.  E.  31 ;  Gor- 
don's  administrators  v.  The  Justices  of  Frederick,  1  Munf. 
R.  1 ;  Catlett  et  al.  v.  Carter's  executors,  2  Munf.  K. 
[*54]  24.  In  our  statute,  *the  general  assembly  seems 
to  have  had  an  eye  to  the  same  course  of  proceed- 
ing.    R.  C.  1824,  p.  323. 

The  same  rule  applies  to  legatees  and  distributees ;  al- 
though they  may  not  in  all  instances  have  to  take  the 
same  steps,  yet  tliey  must  present  their  claims  in  such  a 
way  as  to  make  it  the  duty  of  the  administrator  or  exe- 
cutor to  pay.  They  must  occupy  such  ground  that,  in  re- 
fusing or  neglecting  to  discharge  their  claims,  he  so  far 
violates  his  duty  as  to  subject  himself,  independently  of 
the  bond,  to  a  judgment  de  bonis  jjrojmis.  R.  C.  1824,  p. 
321,  sec.  18. 

Any  person,  whether  legatee,  distributee,  or  creditor, 
whose  claim  has  not  been  exhibited  and  established  ac- 
cording to  law,  and  refused  by  the  administrator,  is  not  a 
party  injured  w^ithin  the  meaning  of  the  statute,  and  has 
no  right  to  the  possession  of  the  bond,  nor  to  have  a  suit 
brought  upon  it  at  his  instance  and  for  his  benefit;  and 
where  the  right  of  suing  on  the  bond  is  abused,  it  is  the 
duty  of  the  Court  to  interfere  and  stop  the  proceedings. 
1  Johns.  Rep.  311.     It  is  not  shown  nor  even  alleged  that 

(63) 


54-55       SUPREME  COURT  OF  mDIANA. 

M'Donald  and  Another  v.  Beach  and  Another. 

the  relators,  in  this  case,  are  either  creditors  or  persons 
entitled  to  distribution.  For  aught  that  appears  in  the 
declaration,  the  action  would  have  been  as  well  brought 
on  the  relation  of  John  Doe  and  Richard  Roe. 

It  is  unnecessary  to  examine  the  plea.  The  demurrer 
brings  the  whole  case  before  the  Court.  The  declaration 
is  defective,  and  the  judgment  must  be  affirmed. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Jiidah,  for  the  appellant. 

Tabbs,  for  the  appellees. 

(1)  Vol.  1  of  these  Rep.  251.  When  suit  is  brought  on  a  bond  given  by 
an  executor  or  administrator,  or  by  any  state,  county,  or  township  officer, 
to  the  state,  governor,  judges,  sheriff,  or  other  civil  officer,  for  the  perform- 
ance of  any  duty  or  trust,  the  person  for  whose  use  the  suit  is  instituted, 
must  endorse  on  the  process  for  whose  benefit  the  same  was  issued;  and,  if 
he  fail  in  the  suit,  he  is  liable  for  costs.     R.  C.  1831,  pp.  402,  403. 

In  actions  of  ejectment,  actions  in  the  name  of  the  state  for  the  use  of  any 
person,  actions  in  favor  of  a  nominal  plaintiff  for  the  use  of  another  person, 
the  defendant,  if  he  obtain  judgment,  may,  in  lieu  of  the  order  and  attach- 
ment for  costs  heretofore  allowed,  take  a  judgment  for  costs  against  the  les- 
sor relator,  or  person  for  whose  use  the  suit  is  brought.    Stat.  1833,  p.  113. 


[*55]     *M'DoNALD  and  Another  v.  Beach  and  Another. 

Partnership— Equities  of  Firm  and  Individual  Creditors. — The  doc- 
trine— that  the  separate  debt  of  one  partner  should  not  be  paid  out  of  the 
partnership  estate,  until  all  the  debts  of  the  firm  are  discharged — is  cor- 
rect; but  it  does  not  apply  until  the  partners  cease  to  have  a  legal  right 
to  dispose  of  their  property  as  they  please.  It  is  applicable  only,  when 
the  principles  of  equity  are  brought  to  interfere  in  the  distribution  of  the 
partnership  property  among  the  creditors  (o). 

Same — Fraudulent  Conveyance. — Those  equitable  principles  operate  on 
the  property  remaining  in  the  possession  of  the  partners,  and  embrace  all 
that  has  been  fraudulently  disposed  of;  but  they  do  not  extend  to  such 
as  has  been  previously  transferred  by  the  firm  in  good  faith. 

ERROR  to  the  Clark  Circuit  Court. 

(a)  See  4  Ind.  169,  9  Id.  343 ;  17  Id.  463 ;  15  Id.  124;  33  Id.  114. 

(64) 


MAY  TERM,  1827.  55-56 


M'Donald  and  Another  v.  Beach  and  Anotlier. 


HoLMAN,  J. — The  bill,  answers,  and  exhibits,  in  this 
case,  show  that  William  Steele  and  Robert  Steele,  mer- 
chants and  partners,  were  indebted  to  the  complainants 
in  the  sum  of  4,043  dollars,  for  which  they  drew  a  bill  of 
exchange  on  Richard  Steele,  a  resident  of  Louisville, 
Kentucky,  payable  on  the  15th  of  December,  1822,  which 
was  presented  and  accepted,  as  is  said,  for  the  accommo- 
dation of  the  drawers,  but  was  afterwards  protested  for 
non-payment;  and  that  William  and  Robert  Steele  are 
insolvent.  The  bill  also  charges  a  further  debt  against 
William  and  Robert  Steele  of  several  thousand  dollars, 
but  of  this  there  is  no  proof.  It  also  appears  that  Wil- 
liam Steele,  as  surety  for  John  Wilson  (who  was  insolv- 
ent), was  indebted  by  a  writing  obligatory  to  the  trustees 
of  Clarksville  to  the  amount  of  2,700  dollars ;  and  that 
Orlando  Raymond,  as  agent  for  the  trustees,  obtained, 
through  William  Steele,  from  Richard  Steele,  who  was 
the  agent  of  William  and  Robert  Steele,  an  order  in  the 
name"  of  said  firm,  dated,  the  14th  of  October,  1822,  for 
280  barrels  of  salt,  the  property  of  said  firm,  which  had 
been  shipped  to  Daniel  Wurts,  commission  merchant  of 
said  firm  at  Jeffersonville,  for  sale.  This  salt  was  ob- 
tained on  said  order  and  deposited  with  the  defendant 
Beach;  and  the  proceeds  were  to  go  towards  the  pay- 
ment of  the  debt  due  to  the  trustees.  Raymond  also  ob- 
tained a  draft,  in  the  name  of  William  and  Robert  Steele, 
on  said  Wurts  for  the  balance  of  the  debt  due  the  trus- 
tees, dated  the  26th  of  October,  1822,  payable  in  six 
.months;  which  draft  was  accepted  by  Wurts,  provided 

he  should  have  funds  belonging  to  the  said  Steeles, 
[*56]    and  he  promised  to  retain  the  *funds  that  came 

into  his  hands  for  that  purpose.  In  consequence 
of  which  draft,  Wurts  retained  in  his  hands  the  sum  of 
1,200  dollars,  which  was  less  than  the  amount  due  the 
trustees.  This  draft  was  in  the  hand-writing  of  William 
Steele;  but  it  does  not  appekr  that  this  fact  was  known 
either  to  Raymond  or  the  trustees.     On  the  10th  of  No- 

VoL  II.— 5  (65) 


56  SUPREME  COURT  OF  IKDIAXA. 

M'DonalJ  and  Another  v.  Beach  and  Another. 

vember,  1822,  the  trustees  transferred  the  bond  of  Wil- 
son aud  William  Steele  to  Beach,  who  was  one  of  the 
trustees;  and,  as  a  collateral  security  for  the  payment, 
they  transferred  to  him  tlieir  claim  on  the  280  barrels  of 
salt,  and  also  the  draft  on  Wurts.  The  salt  was  after- 
wards sold  for  1,012  dollars  and  86  cents,  and  that 
amount  credited  on  said  bond,  on  the  first  of  February, 
1823. 

The  complainants  claim  the  proceeds  of  this  salt,  and 
the  money  retained  by  Wurts,  alleging  that,  by  agree- 
ment with  William  and  Robert  Steele,  they  were  to  have 
the  proceeds  of  all  the  salt  shipped  to  Jeffersonville,  and 
that  this  agreement  was  known  to  Beach  and  the  trus- 
tees. The  answers  deny  all  knowledge  of  this  agree- 
ment, and  there  is  no  evidence  to  support  it.  They  also 
urge,  that  this  disposition  of  the  partnership  property,  to 
pay  the  separate  debt  of  William  Steele,  was  without  the 
knowledge  and  consent  of  Robert  Steele ;  and  that  the 
trustees  knew  this  at  the  time  they  obtained  the  order 
and  the  draft  aforesaid.  This  is  denied  by  the  answers ; 
and  there  is  no  proof  that  this  arrangement  was  made 
without  the  knowledge  of  Robert  Steele.  It  is  true  that 
Robert  Steele,  who  resided  at  Kenhawa,  Virginia,  wrote 
a  letter  to  Wurts,  dated  the  8th  of  May,  1823,  protesting 
against  the  payment  of  said  draft,  and  stating  that  he  did 
not  conceive  it  right  for  William  Steele  to  apply  the  partner- 
ship property  to  the  payment  of  his  separate  debt.  This  let- 
ter was  written  after  the  proceeds  of  the  salt  had  been 
credited  on  the  bond  of  Wilson  and  William  Steele,  and 
after  the  draft  on  Wurts  had  become  due  and  payable. 
It  does  not  expressly  deny  a  kno'svledge  of,  and  consent 
to,  the  arrangement  with  the  trustees ;  but  if  it-  is  sup- 
posed to  do  this  indirectly,  its  effect  is  somewhat  weak- 
ened by  the  testimony  of  Raymond,  w^ho  states  that  he 
saw  Robert  Steele  in  Louisville,  in  the  month  of  October, 
1822,  or  a  little  after;  which  was  about  the  time,  or  just 
after,  the  trustees  had  obtained  the  280  barrels  of  salt, 

(6Q) 


MAY  TERM,  1827.  56-57 

M'Donald  and  Another  v.  Beach  and  Another.  j 

and  the  draft  on  Wurts;  and  it  would  seem  from  the  de- 
position of  Payne,  a  notary  public,  that,  on  the 
[*57]  18th  of  December,  1822,  he  *delivered  to  Robert 
Steele,  in  Louisville,  a  notice  of  the  protest  of  the 
bill  of  exchange;  so  that  it  would  appear  that  Robert 
Steele  had  an  early  opportunity  of  becoming  acquainted 
with  this  arrangement  with  the  trustees.  It  is  further 
weakened  by  the  fact  that  Richard  Steele,  the  agent  of 
"William  and  Robert  Steele,  who  gave  the  order  for  the 
salt,  was  personally  bound  to  the  complainants  as  ac- 
ceptor of  the  bill  of  exchange,  for  the  only  debt  they 
have  proved  against  the  firm  of  William  and  Robert 
Steele.  Another  strong  ground  which  the  trustees  had 
to  suppose  that  both  the  partners  knew  of  the  whole 
transaction,  was,  that  when  Raymond  first  applied  to 
William  Steele  for  the  salt,  said  Steele  informed  him  that 
he  would  do  nothing  in  it  without  consulting  his  partner; 
and  about  three  weeks  afterwards  he  gave  the  order; 
and  that  "William  Steele,  who  resided  at  Cincinnati,  Ohio, 
was,  in  general,  the  active  partner  in  relation  to  the  salt 
shipped  by  the  firm  to  Jeflersonville.  Taking  these  cir- 
cumstances together,  there  seems  to  be  strong  reasons  to 
induce  a  belief,  that  both  the  partners  were  acquainted 
with,  and  consented  to  the  adjustment  made  with  the 
trustees ;  and  that  both  partners  were  bound  by  it.  No  • 
argument  is  here  drawn  from  the  power  that  Richard 
Steele,  as  a  general  agent,  had  to  adjust  the  separate  debt 
of  William  Steele,  by  a  disposition  of  the  partnership 
funds ;  nor  from  the  power  that  "William  Steele,  as  a  part- 
ner, had  to  divert  any  part  of  the  partnership  property 
from  the  purposes  of  the  firm,  to  pay  his  own.  debt,  con- 
trary to  the  will  of  his  co-partner ;  for  this  power,  in 
Richard  Steele,  as  agent,  or  William  Steele,  as  a  partner, 
is  not  contended  for.  But  where  no  covin  appears,  one 
partner  will  not  be  considered  as  acting  without  the  con- 
sent of  the  other;  and  an  agent  as  deeply  interested  as 
Richard  Steele  was,  can  never  be  presumed  to  transcend 

(67) 


57-58       SUPREME  COURT  OF  INDIANA. 


M'Donald  and  Another  r.  Beach  and  Another. 


his  authority  ill  helialf  of  strangers;  when  by  so  doing  lie 
will  increase  his  own  liability.  There  is  a  circumstance 
in  this  case  that  suggests  the  idea,  tliat  even  tlie  com- 
plainants considered  this  as  a  legal  transaction.  On  the 
9th  of  November,  1822,  the  complainants  obtained  an 
order  on  Wurts,  in  the  name  of  William  and  Robert 
Steele,  for  the  partnership  funds  that  might  be  in  his 
hands;  which  order  was  accepted  by  Wurts  condition- 
ally, to  be  discharged  after  satisfying  his  own  demands, 
and  the  obligations  he  was  already  under  on  account  of 

said  firm.  Now,  it  is  not  probable  that  the  nature 
[*58]    of  this  conditional   ^acceptance  was  unknown  to 

the  complainants,  or  was  withheld  from  the  knowl- 
edge of  Robert  Steele,  unless  the  complainants,  as  well  as 
Richard  Steele,  were  perfectly  satisfied  with  what  had 
been  previously  done.  So  that  we  are  induced  to  believe 
that  no  person  whatever,  at  this  period,  supposed  that 
there  was  anything  illegal  or  fraudulent  in  this  trans- 
action with  the  trustees.  And  we  are  strengthened  in 
the  belief  that  this  transaction  was  not  only  in  good  faith, 
bat  that  no  person  supposed  the  contrary,  from  the  cir- 
cumstance that  the  adjustment  was  made,  and  the  claim 
of  the  trustees  transferred  to  Beach,  sometime  before  we 
hear  of  any  suspicion  of  the  insolvency  of  William  and 
Robert  Steele.  It  is  not  until  December,  1822,  that  we 
learn  that  they  were  considered  doubtful  at  Kenhawa, 
the  principal  seat  of  their  business;  and  not  until  March, 
1823,  that  they  were  there  reputed  insolvent.  There- 
fore, after  examining  all  the  circumstances  of  the  case, 
we  can  but  consider  this  transaction  as  the  joint  act  of 
the  firm,  disposing  of  so  much  of  the  partnership  prop- 
erty for  the  separate  benefit  of  one  of  the  partners.   - 

But  it  is  contended,  that  the  separate  debt  of  one  part- 
ner should  not  be  paid  out  of  the  partnership  estate,  until 
all  the  debts  of  the  firm  are  discharged.  This  doctrine 
is  correct,  but  it  does  not  apply,  until  the  partners  cease 
to  have  a  legal  right  to  dispose  of  their  property  as  they 

(68) 


MAY  TERM,  1827.  58-59 


M'Donald  and  Another  v.  Beach  and  Another- 


please.  It  is  applicable,  only  when  the  principles  of  equity- 
are  brought  to  interfere  in  the  disti'ibution  of  the  partner- 
ship property  among  the  creditors.  These  equitable  prin- 
ciples operate  not  only  on  the  property  remaining  in  the 
possession  of  the  partners,  but  embrace  all  that  has  been 
fraudulently  disposed  of;  bat  will  not  extend  to  such  as 
has  been  previously  transferred  in  good  faith.  There  is 
no  ground  on  which  we  can  presume  that  the  trustees, 
when  they  made  this  arrangement  for  the  discharge  of 
their  demand;  or  that  Beach,  when  he  purchased  their 
claim;  had  any  intention  of  defeating  the  claimants  in 
the  recovery  of  their  debt ;  for  it  does  not  appear  that 
they  had  any  certain  knowledge  of  its  existence.  They 
were  desirous  of  recovering  their  own  debt ;  and  whether 
it  was  discharged  out  of  the  separate  property  of  William 
Steele,  or  out  of  the  partnership  property  of  William  and 
■  Robert  Steele,  was  a  matter  in  which  they  were 
[*59]  not  directly  concerned.  The  trustees  obtained  *pos- 
session  of  the  salt,  and  of  the  draft  on  Wurts,  and 
transferred  their  claim  to  Beach,  at  a  time  when  no  per- 
son, not  even  the  complainants,  seem  to  have  supposed 
there  was  any  tinfairness  in  the  transaction;  and  having 
obtained  this  legal  advantage,  it  would  require  a  strong 
claim,  indeed,  to  divest  them  of  it.  The  claim  of  the 
complainants  is  not  of  this  nature.  The  only  debt  they 
have  attempted  to  prove,  arises  on  the  bill  of  exchange. 
This  was  payable  on  the  15th  of  December,  1822.  On  the 
9th  of  November  previous,  they  received  the  conditional 
acceptance  of  their  order  on  Wurts,  and  we  presume  were 
acquainted,  at  that  time,  with  the  draft  in  favor  of  the 
trustees ;  yet  they  permitted  this  arrangement  to  proceed 
undisturbed,  until  they  filed  the  present  bill  in  November 
1823.  For  the  amount  due  on  this  bill  of  exchange,  they 
have  Richard  Steele  liable  to  them  as  the  acceptor.  It  is 
true,  tliey  are  not  bound  to  resort  to  the  acceptor  of  the 
bill,  but  may  urge  their  claim  upon  the  partnership  prop- 
erty, when  the  property  has  not  been  disposed  of,  or  the 

(69) 


69-60         SUPREME  COURT  OF  mi)IAI?TA. 

M'Donald  and  Another  v.  Beach  and  Another. 

disposition  is  fraudulent.  But  where  there  are  eonflict- 
ino-  claims,  the  manner  in  which  those  claims  are  secured, 
is  resorted  to  as  a  means  of  determining  their  compara- 
tive merit.  So,  in  this  case,  the  complainants  have  not 
the  same  plea  for  interfering  with  any  disposition  of  the 
partnership  property  that  they  would  have  had,  if  they 
had  no  security  for  their  demand.  It  should  however  be 
remembered,  that  the  bill  charges  that  Richard  Steele  is 
not  able  to  pay  the  whole  of  their  demand.  On  the  other 
hand,  his  entire  ability  to  pay  the  whole  is  asserted  by 
the  answers;  and  no  proof  is  adduced  on  the  subject. 
The  answers  also  state,  that  the  complainants  have  insti- 
tuted suit  against  him,  and  have  stayed  the  proceedings 
until  this  suit  is  determined;  and  that  this  suit  is  prose- 
cuted for  his  benefit :  so  the  presumption  is,  that  the  com- 
plainants have  ample  security  for  their  debt.  In  thus 
stating  the  merits  of  the  complainants'  demand,  we  do 
not  contrast  it  with  the  demand  of  the  trustees,  on  the 
ground  that  the  trustees  had  originally  any  claim  on  the 
partnership  propert}',  but  on  the  ground  that  they  have 
received  a  legal  claim  to,  and  possession  of,  a  part  of  the 
partnership  funds,  and  at  a  time  when  the  partners  had 
entire  control  over  their  property;  and  our  object  is  to 
show,  that  if  any  claim  could  be  strong  enough  to 
[*60]  defeat  the  *claim  of  the  trustees,  that  the  com- 
plainants have  not  made  out  such  a  claim. 
But  it  is  urged,  that  if  the  complainants  have  not  shown 
themselves  entitled  to  divest  the  defendants  of  these  funds, 
on  account  of  their  having  security  for  their  debt;  yet 
that  Richard  Steele,  as  he  has  to  discharge  this  bill  of  ex- 
change, which  it  is  said  was  accepted  for  accommodation 
only,  should  be  considered  as  a  creditor  of  the  said  firm ; 
and  that  the  arrangement  with  the  trustees  should  be  set 
aside  in  his  favor.  But,  when  his  agency  in  this  business 
is  considered,  it  is  impossible  to  suppose  that  the  trustees 
have  committed  a  fraud  against  him,  or  have  taken  any 
undue  advantage  of  him. 

(70) 


MAY  TERM,  1827.  60-61 


M'Donald  and  Another  v.  Beach  and  Another. 


We  have,  throughout  this  case,  considered  Beach  in  the 
same  situation,  as  the  trustees  of  Clarksville,  as  he  was  a 
member  of  that  corporation,  and  was  individually  apprised 
of  the  nature  of  the  securities  he  obtained  with  the  trans- 
fer 01  the  demand  of  the  trustees ;  so  that  it  is  unneces- 
sary to  investigate  a  question  that  has  been  stirred, 
whether  he  has  paid  the  full  consideration  to  the  trustees 
for  their  claim.  lie  is  entitled  at  all  events,  as  far  as  the 
complainants  and  Richard  Steele  are  concerned,  to  all  the 
advantages  that  could  be  claimed  by  the  trustees.  And 
we  see  nothing  in  the  case,  thus  far,  to  authorize  a  Court 
of  equity  to  rescind  the  contract  with  the  trustees,  or  to 
divest  Beach  of  any  legal  advantage  he  has  obtained. 

There  is  another  feature  of  the  complainants'  case  that 
merits  some  attention.  A  written  agreement  was  entered 
into  on  the  9th  of  November,  1822,  between  AVilliam  Steele 
and  Beach,  by  which  William  Steele  was  to  furnish  Beach 
with  a  quantity  of  salt  at  a  stipulated  price,  sufficient, 
with  what  salt  he  had  received,  to  pay  off  the  demand  of 
the  trustees :  The  salt  to  be  delivered  in  ten  days,  and  the 
order  on  Wurts  to  he  given  iqy.  It  does  not  appear  that 
either  part  of  this  agreement  was  fulfilled.  The  salt  was 
not  delivered,  nor  the  order  given  up.  Beach  in  his  an- 
swer states,  that  the  order  was  not  to  be  given  up  until 
the  salt  was  delivered.  But  the  complainants  contend, 
that,  according  to  the  agreement,  the  order  was  to  be 
given  up  unconditionally ;  and  that  no  condition  can  be 
annexed  to  it  by  parol.  This  agreement  is  not  a  deed, 
and  what  right  William  Steele  might  have  had  under  it 
to  demand  this  order,  before  the  failure  to  comply 
["^61]  with  the  agreement  on  his  part,  need  not  *now  be 
inquired  into;  for  the  failure  to  deliver  the  salt, 
presents  a  total  failure  of  the  consideration  on  which  the 
order  was  to  be  given  up.  So  that  neither  law  nor  equity 
would  require  Beach  to  deliver  up  the  order.  This  cir- 
cumstance, therefore,  can  not  affect  the  case  of  the  com- 
plainants. Their  bill  was  correctly  dismissed  by  the  Cir- 
cuit Court.  '  (71) 


61  SUPREME  COURT  OF  INDIANA. 

Bosley  r.  Farquar  and  Another. 

Per  Curiam.— The  decree  is  affirmed  with  cosCb. 
Deicey  and  Nelson,  for  the  plaintiiis. 
Mowk,  for  the  deffciidants. 


Bosley  v.  Farquar  and  Another.  ' 

Jurisdiction— "WArv'ER — C^iange  of  Venue.— The  record  showed  that  a 
suit  had  been  commenced  in  the  Orange  Circuit  Court,  and  that  a  decla- 
ration and  plea  had  been  therein  filed  ;  that  the  declaration  and  plea, 
with  an  affidavit  for  a  change  of  venue,  were  afterwards  on  file  in  the 
Washington  Circuit  Court ;  that  the  cause  was  tried,  and  a  verdict  ren- 
dered for  the  plaintiff,  a  new  trial  granted  on  the  defendant's  motion,  a 
second  verdict  and  final  judgment  rendered  for  the  plaintiflT,  in  the  last- 
named  Court.  Held,  that  the  circumstance  of  the  record's  not  showing 
an  order  for  a  change  of  venue,  could  not  be  assigned  for  error,  no  objec- 
tion having  been  made  below  to  the  jurisdiction  of  the  Washington  Cir- 
cuit Court  (a). 

Evidence — Sheriff's  Return. — In  an  action  against  a  sheriff  for  a  false 
return,  the  execution  is  admissible  in  evidence,  though  it  do  not  specify 
the  day  on  which  it  is  returnable. 

Same — Form  of  Return. — The  sheriff's  return  to  a  fieri  facias  Avas,  that 
he  had  not  levied  because  the  plaintiff  would  not  give  him  an  indemnity: 
Held,  that  this  was  a  return  unknown  to  the  law,  and  that  the  cause  must 
stand  as  if  no  return  were  made  (6). 

Execution — Levy — Indemnity. — Even  if  such  an  indemnity  could  be  re- 
quired in  any  case,  it  should  be  demanded  as  soon  as  the  circumstance!" 
authorizing  the  demand  were  known  to  exist. 

Same — Duty  of  Officer. — If  the  sheriff,  in  consequence  of  vague  rumorf 
as  to  whether  certain  goods  are  the  debtor's  or  not,  return  nulla  bona 
without  having  the  right  of  property  tried  by  a  jury, — he  will  be  liabl* 
for  a  false  return,  on  proof  that  the  goods  were  subject  to  the  execution. 

Sheriff — Authority  of  Deputy. — If  it  appear  that  a  person  has  acted 
generally  as  a  deputy  sheriff,  with  the  sheriff's  knowledge  and  consent, 
the  sheriff  is  liable  for  the  official  acts  of  such  person,  though  he  may  nol 
have  given  him  any  express  authority. 

Practice — Dispersion  of  Jury — No  Error. — The  jury,  about  to  retire  t(J 
consider  of  their  verdict,  w^re  instructed  by  the  Court,  that  should  they 
agree  before  the  meeting  of  the  Court  on  the  following  day,  they  might 
seal  up  their  verdict,  disperse,  and  hand  in  their  verdict  on  the  next 
morning.     Held,  1st,  that  as  the  record  did  not  show  the  di-spersion  of 

(a)  6  Blkf.  529  ;  4  Ind.  2      ;  19  Id.  324  ;  46  /(/.  315o     (b)  44  Ind.  490-507. 

(72) 


MAY  TERM,  1827.  61-62 

Bosley  v.  Farquar  and  Another. 

the  jury,  no  objection  founded  on  their  dispersion  could  be  noticed  on  a 
writ  of  error ;  2dly,  that  as  the  instruction  was  not  objected  to  when 
given,  the  dispersion  were  it  shown  could  not  be  assigned  for  error  (c). 

[*62]  TERROR  to  the  Washington  Circuit  Court.— 
Action  on  the  case  by  Farquar  and  Collins  against 
Bosley,  sheriif  of  Orange  county,  for  a  false  return  to  a 
writ  of  tieri  facias.  Plea,  the  general  issue.  Verdict  and 
judgment  for  the  plaintiffs. 

HoLMAN,  J. — Farquar  and  Collins  in  their  declaration 
against  Bosley,  show  the  recovery  of  a  judgment  in  their 
favor  against  H.  Stephen,  for  138  dollars  and  92  cents; 
and  the  issuing  of  a  fieri  facias  thereon,  which  was  placed 
in  the  hands  of  Bosley  as  sheriff;  averring  that  Stephen 
had  sufficient  property  to  satisfy  said  execution  ;  but  that 
Bosley  refused  to  levy  the  execution,  and  falsely  returned 
it  not  levied,  because  the  plaintiffs  would  not  give  him  a 
bond  of  indemnity;  and  averring  also,  that  the  sheriff 
never  requested  a  bond  of  indemnity  of  the  plaintiffs. 
The  defendant  pleaded  not  guilty.  This  declaration  and 
plea  were  filed  in  the  Orange  Circuit  Court.  Afterwards, 
they,  together  with  an  afi&davit  for  a  change  of  venue, 
were  found  among  the  records  of  the  Washington  Circuit 
Court.  No  order  for  a  change  of  venue  appears,  but  no 
objection  was  made  to  the  jurisdiction  of  the  Washington 
Circuit  Court,  where  the  case  proceeded  through  several 
continuances,  and  two  trials  by  jury,  to  a  verdict  in  favor 
of  the  plaintiffs,  on  which  judgment  was  given.  After 
the  first  verdict,  the  defendant  obtained  a  new  trial. 
When  the  second  verdict  was  found,  he  again  moved  for 
a  new  trial,  which  was  refused;  whereupon  he  filed  a  bill 
of  exceptions  setting  forth  the  whole  of  the  evidence. 

The  bill  of  exceptions  contains  the  judgment  in  favor 
of  the  plaintiffs,  the  fieri  facias  that  issued  thereon,  and 
the  sherifi's  return.  It  also  contains  a  judgment  in  favor 
of  Clendenin  against  H.  Stephen,  for  271  dollars  and  75 

(c)  See  post,  114  ;  3  Blkf.  27  ;  37  Ind.  469  ;  34  Id.  464  ;  36  Id.  288  ;  40  Id. 
289  ;  48  Id.  207. 

(73) 


62-63       SUPREME  COURT  OF  INDIAISTA. 

Bosley  v.  Farquar  and  Another. 

cents,  and  a  fieri  facias  thereon,  which  was  levied  on  a 
variety  of  articles  of  household  furniture,  a  lot  of  fur,  and 
a  number  of  law  books  in  the  hands  of  third  persons. 
This  property,  except  the  lot  of  fur  and  the  law  books, 
was  sold  for  130  dollars  and  53  cents.  The  lot  of  fur  was 
claimed  by  J.  Stephen,  the  right  of  property  was  tried, 
and  found  against  the  claimant,  who  appealed  to  the  Cir- 
cuit Court;  and  the  books  were  not  sold  for  the  want  of 
buyers.  A  venditioni  exponas  issued  for  the  sale  of  the 
books.  These  books  were  principally  in  the  possession 
of  Blanchard,  who  claimed  a  lien  on  them  for  170  dollars, 

and  who  refused  to  give  them  up  until  that  sum 
[*63]    was  paid.     The  books,  thus  ^situated,  sold  for  400 

dollars  under  an  agreement  between  H.  Stephen 
and  the  purchaser,  that,  after  satisfying  the  execution, 
the  purchaser  should  retain  the  balance  of  the  purchase- 
money.  The  witness  does  not  know  that  they  would 
have  sold  for  as  much  on  a  regular  sale. 

It  appeared  in  evidence,  that  the  plaintiffs'  and  Clen- 
denin's  executions  were  both  placed  in  the  hands  of  Lind- 
ley,  as  the  deputy  of  Bosley,  on  the  same  day,  but  that 
the  execution  of  the  plaintiffs  was  first,  and  that  Lindley 
was  charged  by  one  of  the  plaintiffs  to  levy  it  first,  or  he 
would  hold  him  responsible;  that  a  day  or  two  after- 
wards, Clendenin  took  his  execution  out  of  the  hands  of 
Lindley  and  placed  it  in  Bosley's  hands,  and  on  Bosley's 
refusing  to  lev}"  it  without  a  bond  of  indemnity  he  gave 
the  indemity;  and  that  afterwards,  on  the  same  day, 
Lindley  placed  the  execution  of  the  plaintiffs  in  Bosley's 
hands;  and  that  Lindley  generally  acted  as  a  deputy 
sheriff  under  Bosley.  One  of  the  witnesses  had  an  im- 
pression that  Bosley  told  him  that  Lindley  was  his  dep- 
uty. It  also  appeared  in  evidence  that  an  idea  prevailed, 
that  the  property  of  H.  Stephen  was  not  liable  to  execu- 
tion, and  that  Bosley  had  received  the  opinion  of  an  at- 
torney at  law  to  that  efl'ect,  by  whom  he  was  advised  to 

(74) 


MAY  TERM,  1827.  63-04 

Bosley  v.  Farquar  and  Another. 

exact  a  bond  of  indemnity  of  the  plaintifis  before  he  levied 
their  execution. 

Objections  were  made,  by  the  defendant,  to  the  reading 
of  the  judg!nents  and  executions  in  evidence;  and  to  the 
execution  of  the  plaintifis  in  particular,  because  the  re- 
turn day  was  not  inserted;  but  the  Court  permitted  them 
to  go  in  evidence  to  the  jury. 

The  defendant  moved  the  Court  to  instruct  the  jury, 
that  under  the  circumstances  of  doubt,  in  which  H.  Ste- 
phen's property  was  involved,  the  sheriff*  was  justified  in 
not  levying  the  plaintiffs'  execution  without  a  bond  of 
indemnity;  which  instruction  the  Court  refused  to  give. 
And  the  Court  instructed  the  jury  that  if  they  were  sat- 
isfied, from  the  evidence,  that  Lindley  did  act  generally  as 
the  deputy  of  Bosley,  and  with  Bosley's  knowledge  and 
consent,  that  Bosley  was  responsible  for  his  acts,  and  that 
proof  of  a  written  appointment  or  bond  was  unnecessary. 

In  reviewing  these  proceedings,  w^e  can  not  but  per- 
ceive that  the  objection  to  the  jurisdiction  of  the  Wash- 
ington Circuit  Court  comes  too  late.  If  the  venue 
[*64]  had  not  been  regularly  ^changed  or  not  changed 
at  all,  from  Orange  to  Washington,  this  matter 
should  have  been  rectified  in  the  Washington  Circuit 
Court  before  any  other  proceedings  were  had  in  the  case. 
As  no  objection  was  then  made,  nor  in  fact  made  at  any 
time  in  that  Court,  none  can  avail  here. 

The  motion  to  reject  the  plaintifis'  execution  from  be- 
ing read  as  evidence  to  jury,  because  the  return  day  was 
not  inserted,  was  properly  overruled.  The  execution 
commands  the  sheriff  to  return  the  money  made,  together 
with  the  writ,  but  does  not  specify  the  day  wdaen  this  is 
to  be  done;  but  that  Court,  no  doubt,  according  to  the 
act  of  assembly,  had  regular  return  days,  so  that  the 
sheriff  could  be  at  no  loss  when  the  execution  was  to  be 
.returned.  In  England,  executions  are  returnable  to  the 
terms  of  the  Court,  yet  an  execution  returnable  out  of 
term  is  not  void,  but  only  voidable.     CamjyheU  v.  Cumming, 

(75) 


64-65       SUPREME  COURT  OF  INDIANA. 

Bosley  v.  Farquar  and  Another. 

2  Burr.  1187.  So  also  in  New  York,  Cramer  v.  Vcm 
Alstyne,  9  Johns..  R.  386.  In  Kentucky,  an  act  of  as- 
sembly requires  that  there  should  not  be  more  than  90 
days  between  the  test  and  return  day  of  an  execution; 
yet  it  was  there  held,  in  an  action  for  not  returning  an 
execution  which  was  returnable  more  than  90  days  from 
the  test,  that  the  execution  was  not  void  bnt  only  void- 
able, and  that  the  sherilt'was  liable  for  not  returning  it. 
Wilso7i  V.  Huston,  4  Bibb,  332.  Similar  doctrine  may  be 
found  in  a  variety  of  cases.  See  Shirley  v.  Wright,  2  Ld. 
Raym.  775,  S.  C.  2  Salk.  700;  Williams  v.  Rogers,  5  Johns. 
R.  163,  and  the  cases  there  cited.  We  consider  that  the 
omission  of  the  day  of  return  in  this  case  did  not  render 
the  execution  void;  the  sheriff  might  have  justified  under 
it,  and  is  liable  for  not  levying  it. 

The  reason  assigned,  in  the  sheriff's  return  for  not 
levying  this  execution,  is  insufficient  to  justify  or  excuse 
him.  The  return  is  unknown  to  the  law.  There  is  no 
general  rule  laid  down  in  the  books  on  the  subject  of  in- 
demnifying the  sheriff  in  doubtful  cases.  In  the  case  of 
Bayley  v.  Bates,  8  Johns.  R.  187,  it  is  said  to  be  the  usual 
course  for  the  sheriff  to  take  an  indemnity,  by  bond,  from 
the  plaintiff,  if  the  question  of  property  be  doubtful  or 
litigated.  But  it  does  not  appear  that  the  sheriff  can  de- 
mand an  indemnity  as  a  matter  of  right,  or  refuse  to  act 
if  it  is  not  given.  Such  appears  to  be  the  doctrine  con- 
tained in  the  case  of  M' George  et  al.  v.  Birch,  4  Taunt.  R. 
585.  There  the  sheriff  had  taken  ihe  goods  of  a 
[*65]  bankrupt  in  execution,  at  *  the  suit  of  Cohen.  The 
assignees  gave  notice  to  the  sheriff  that  they 
claimed  the  goods.  He  apprised  Cohen  of  this  and  re- 
quested him,  either  to  authorize  the  delivery  of  the  goods 
to  the  assignees,  or  to  indemnify  the  sheriff;  but  Cohen 
refused  to  do  either.  He  then  desired  the  assignees  to 
receive  the  goods  and  give  an  indemnity,  which  they  also 
refused,  and  commenced  an  action  against  him.  The 
state  of  the  case  being  made  known  to  the  Court,  they 

(76) 


MAY  TERM,  1827.  65-66 

Bosley  v.  Farquar  and  Another. 

took  measures  to  secure  the  sheriff";  but  the  course  pur- 
sued is  very  far  from  leading  to  the  idea,  that  the  sheriff" 
would  be  excused  from  acting  on  the  execution  for  want 
of  an  indemnity.  It  does  not  appear  to  be  obligatory  on 
the  plaintiff"  to  indemnify  the  sheriff  in  any  case;  and  if 
he  fails  or  refuses  to  do  so,  there  are  various  methods  sug- 
gested in  the  books  by  which  the  sheriff  may  be -protected 
from  injur}'.  See  the  above  cases  of  31^ George  v.  Birch, 
and  the  cases  cited  in  Bayley  v.  Bates.  But  we  have  seen 
no  case  where  a  sheriff"  is  said  to  be  excused  in  not  acting 
on  an  execution  for  want  of  an  indemnity.  If  an  indem- 
nity is  off'ered,  or  given,  the  sheriff'  may  be,  and  is,  re- 
quired to  do  many  things  that  he  would  be  justified  in 
not  doing  if  there  was  no  indemnity;  and  if  he  refuses 
an  indemnity,  when  off'ered,  he  will  be  held  liable  in 
many  cases  where  he  would  be  othorwise  excused.  Bay- 
ley  V.  Bates,  supra;  Van  Cleefx.  Fhet,  15  Johns.  R.  147; 
3  Stark.  Ev.  1344,  and  the  cases  there  cited  (1). 
.  But  even  if  a  sheriff  were  justified  in  not  acting  on  an 
execution  unless  an  indemnity  were  given,  it  would  seem 
to  be  a  necessary  part  of  the  rule  that  he  should  apprise 
the  plaintiff"  of  the  state  of  the  case,  and  of  his  determin- 
ation not  to  act  without  an  indemnity.  And  this  should 
be  done  when  he  received  the  execution  ;  or,  if  the  doubts 
in  which  the  goods  of  the  debtor  were  involved  were  then 
unknown,  he  should  seek  the  earliest  opportunity,  after 
he  ascertained  that  the  goods  were  in  dispute,  to  inform 
the  plaintiff"  of  the  circumstances  of  the  case.  In  this 
case  the  plaintiff's  aver  in  their  declaration,  that  the  sheriff 
never  requested  an  indemnity  of  them;  nor  does  it  ap- 
pear that  he  at  any  time  informed  them  that  there  was 
any  necessity  for  an  indemnity.  His  having  neglected  to 
give  this  information  to  the  plaintiffs,  and  having  given 
it  to  Clendenin,  whereby  Clendenin  procured  the  levying 
of  his  execution,  seems  to  manifest  on  the  part  of 
\^QQ'\    the  sheriff",  a  disposition  to  give  undue  ^preference 

(") 


m  SEPREME  COURT  OF  INDIANA. 

Bosley  v.  Farquar  and  Another, 

to  the  younger  execution ;  an  evil  against  which  the 
rules  of  law  are  intended  to  guard. 

When  a  sherifl"  receives  a  fieri  facias,  it  is  his  duty  to 
use  due  diligence  in  searching  for  the  property  of  the 
debtor;  and  if  he  finds  it  involved  in  doubt  and  dispute, 
he  should  make  every  inquiry  that  the  nature  of  the  case 
presents,  in  order  to  ascertain  to  whom  it  actually  be- 
longs; and  for  this  purpose  he  may  have  the  right  of 
property  tried,  as  directed  by  the  act  of  assembly  (2). 
But  if  he  should  be  influenced  by  vague  and  uncertain 
rumors,  as  to  the  goods  of  the  debtor,  and,  without  in- 
quiring into  the  right,  should  return  nulla  bona,  and  it 
should  afterwards  appear  that  the  goods  were  liable  to 
the  execution,  there  can  be  no  doubt  but  that  the  sherifl" 
would  be  liable  for  a  false  return.     3  Stark.  Ev.  1344. 

In  this  case  the  return  being  unknown  to  the  law,  is  as 
if  there  was  no  return  at  all,  which,  in  legal  construction, 
is  a  false  return ;  and  such  in  fact  is  the  efi'ect  of  this  re- 
turn, if  taken  in  the  full  force  of  its  expressions;  it  con- 
veys the  idea  that  the  sheriflf  has  not  acted  on  the  execu- 
tion. But  suppose  the  sherifl',  in  this  case,  had  returned 
nulla  bona,  the  usual  return  when  the  sherifl"  supposes  he 
is  justified  in  not  levying  on  the  supposed  property  of  the 
debtor,  and  the  facts  that  appeared  in  the  proceedings 
under  Clendenin's  execution,  had  been  shown  in  evidence 
— can  there  be  a  question  but  that  the  sherifl'  would  be 
liable  for  a  false  return?  The  execution  of  the  plaintift's 
was  for  138  dollars  and  92  cents,  and  the  goods  sold  on 
Clendenin's  first  execution  amounted  to  130  dollars  and 
53  cents,  nearly  enough  to  satisfy  the  execution  ;  and, 
about  the  ownership  of  these  goods,  there  does  not  ap- 
pear to  have  been  any  doubt  or  dispute  whatever.  This, 
with  the  sale  of  the  books,  for  a  sum  so  far  above  what 
would  have  been  required  to  satisfy  the  execution  of  the 
plaintifl's,  shows  conclusively  that  if  the  sherifl'  had  levied 
their  execution,  instead  of  Clendenin's,  that  it  might  have 
been  satisfied.     Nor  does  it  appear  that  the  sherifl"  experi- 

(78) 


MAY  TERM,  1827.  66-67 

Bosley  r.  Farquar  and  Another. 

enced  any  peculiar  difficult}',  or  was  exposed  to  any  pecu- 
liar danger,  in  making  this  levy  and  sale;  nothing  has 
been  seen  that  suggests  any  other  idea  than  that  the 
sheriiF,  with  ordinary  diligence,  might  have  known  the 
true  state  of  so  much  of  the  debtor's  goods,  as 
[*67]  would  have  satisfied  the  execution  of  *the  plain- 
tiffs. So  that,  in  every  point  of  view,  we  think 
the  sheriff's  return  unwarranted  by  law. 

The  instructions  given  by  the  Court  to  the  jury,  re- 
specting the  liability  of  Bosley  for  the  acts  of  Lindlej^, 
were  correct.  If  Lindley  acted  generally  as  the  deputy 
sheriff  of  Bosle}',  with  Bosley's  knowledge  and  consent, 
Bosley  should  be  liable  for  his  official  acts,  even  if  he  had 
never  given  him  express  authority. 

After  the  jury  in  this  case  were  sworn,  and  the  evi- 
dence heard,  the  Court,  being  about  to  adjourn,  author- 
ized the  jury,  that,  if  they  made  up  their  verdict  before 
the  Court  was  again  open,  they  might  seal  it  up  and  dis- 
perse, and  hand  in  their  verdict  when  the  Court  opened 
the  next  morning.  The  next  morning  the  verdict  was 
given  in,  and  this  is  assigned  for  error.  But  the  plaintiff 
in  error  should  recollect  that  it  does  not  appear  of  record 
that  the  jury  did  disperse;  they  may  have  continued  in 
their  room  all  night;  nor  does  it  appear  that  the  plaintiff 
in  error  made  any  objection  to  this  direction  of  the  Court. 
If  no  objection  was  made  at  the  time  to  the  dispersion  of 
the  jury,  after  they  had  made  up  and  sealed  their  ver- 
dict, there  was  no  error  committed,  even  if  the  jury  had 
left  their  room  according  to  the  privilege  given  by  the 
Court  (3). 

Per  Curiam. — The  judgment  is  affirmed  with  1  jper  cent. 
damages  and  costs. 

Rowland  and  Farnham,  for  the  plaintiff. 
Nelson,  for  the  defendants. 

(1)  If  the  property  in  goods  taken  under  an  execution  be  in  dispute,  as 
frequently  happens  in  the  case  of  bankruptcy,  &c.,  the  Court  upon  the  sug- 
ye^iion  (.f  this  or  any  other  reasonable  cause,  by  the  sheriff,  will  enlarge 

(79) 


67-68       SUPREME  COURT  OF  INDIANA. 

Bosley  r.  Farquar  and  Another. 

the  time  for  making  the  return,  until  the  right  be  tried,  or  until  one  of 
the  parties  have  given  the  sheriflf  a  sufficient  indemnity.  Semb.  7  T.  R. 
173;  2  W.  Bl.  1064,  1181;  7  Taunt.  294;  1  Bingh.  71.  This,  however,  is 
not  to  be  considered  a  general  rule;  but  the  indulgence  will  be  granted 
only  in  special  cases,  under  particular  circumstances,  because  the  sheriflT, 
where  the  property  is  in  dispute,  may  summon  an  inquest  to  say  whose 
property  it  is,  before  he  returns  the  writ.  But  in  all  cases  where  the  doubt 
arises  from  a  point  of  law,  and  not  from  mere  matter  of  fact,  the  Court 
upon  application  will  enlarge  the  time  for  making  the  return.  See  4 
Taunt.  585;  7  T.  R.  178;  1  Taunt.  120;  1  Arch.  Pr.  288. 

The  following  are  some  of  the  cases  on  this  subject : 

Where  a  commission  of  bankrupt  has  been  issued  against  a  defendant, 
and  his  assignee  claim  the  property,  and  the  plaintifl'  refuses  to  indemnify 
the  sherifl',  the  Court  will  enlarge  the  time  for  the  sherifl's  returning  the 
fieri  facias  until  the  next  term.     But  there  must  be  a  rule  to  show  cause. 

Ledbury  v.  iSmith,  1  Chitt.  R.  294. 
[*68]  *An  action  having  been  brought  against  the  sheriff  by  the  as- 
signee of  a  bankrupt  for  taking  goods  after  the  bankruptcy,  on  a 
writ  issued  out  of  C.  P.,  in  which  Court  time  had  been  given  to  return  the 
writ,  this  Court,  K.  B.,  staid  the  proceedings  until  an  indemnity  was  given 
to  the  sheriff,  on  the  terms  of  his  paying  over  to  the  assignee  the  money 
levied,  and  the  costs  of  the  action  against  the  sheriff.  Probinia  v.  Roberts,  1 
Chitt.  R.  577. 

A  sheriff  may  apply  to  the  Court  for  a  rule  to  enlarge  his  return  to  a 
venditioni  exponas,  from  term  to  term,  if  the  defendant  become  bankrupt, 
unless  he  be  indemnified  by  the  assignees  in  paying  over  the  money  levied 
under  it,  or  the  rule  for  such  enlargement  be  duly  discharged.  Venables  v. 
Wilks,  4  J.  B.  Moore,  339. 

A  rule  to  show  cause,  v/hy  the  rule  calling  on  the  sheriff  to  return  a  fieri 
facias,  should  not  be  enlarged  until  the  sheriff  should  be  idemnified,  was 
obtained.  On  the  facts  being  disclosed,  the  plaintiff  contended  that  he  was 
not  bound  to  indemnify  the  sheriff,  because  he  had  a  right  to  seize  the 
goods,  which  were  the  defendants's,  wherever  he  could  find  them.  A  third 
person,  who  claimed  the  goods,  submitted  that  he  was  not  bound  to  give  an 
indemnity,  as  he  was  clearly  the  owner  of  the  goods.  The  Court  said,  that 
as  there  was  considerable  difficulty  in  determining  which  of  the  parties  was 
entitled  to  have  the  goods,  the  sheriff  ought  not  to  be  called  upon  to 
come  to  that  determination  ;  the  sheriff  ought  therefore  to  be  indemnified. 
The  rule  for  enlarging  the  time  for  returning  the  writ  must  consequently 
be  made  absolute.     Clegg  v.  Woollan,  M.  T.  18.30,  K.  B.  1  Leg.  Obs.  108. 

A  rule  was  obtained  to  show  cause  why  the  sheriff  should  not  have 
further  time  to  return  the  writ  of  fi.  fa.  directed  to  him,  and  under  which  he 
had  levied.  From  the  facts  disclosed,  on  .showing  cause,  it  appeared  that 
whether  the  property  of  the  defendant  vested  in  his  assignees  under  a  com- 
mission of  bankrupt,  depended  on  the  construction  to  be  put  on  a  statute  of 
(5  Geo.  4.  The  Court  thought  that  the  act  did  not  vest  the  goods  of  the 
defendant  in  the  assignees ;  yet  that,  as  it  appeared  a  question  liable  to 
doubt,  the  sheriff  ought  to  have  time  to  consider  the  course  he  would 
pursue.  The  Court  said  that  the  rule,  therefore,  would  not  be  made  abso- 
lute in  the  common  form,  but  for  enlarging  the  rule  to  return  the  writ  until 
the  end  of  the  next  term.  The  sheriff  might  of  course  in  the  meantime, 
come  to  the  Court  and  applv  to  enlarge  the  time  still  further.  Rule  abso- 
lute._     K.  B.  M.T.  1830,  Ibberson  v.  Dims,  1  Leg.  Obs.  109. 

Richards  showed  cause  against  a  rule,  calling  on  a  defendant  to  show 
cause  why  the  sheriff  should  not  have  time  to  return  the  writ  until  the  first 
day  of  the  next  term.  The  fi.  fa.  had  been  made  returnable  on  Monday 
next  after  the  morrow  of  St.  Martin.  On  the  1st  of  November,  the  writ  had 
been  delivered  at  the  sherifJ's  office,  and  the  sheriff  accordingly  proceeded 

(80) 


MAY  TERM,  1827.  68-69 

Bosley  c  Farquar  and  Another. 

to  lew.  He  was  then  informed,  that  the  whole  of  the  good?  on  the  prem- 
ises had  been  assigned  to  a  person  named  John  Jones.  There  was  no  reason 
stated  for  suspecting  the  assignment  to  be  fraudulent,  except  that  Jones 
was  the  nephew  of  the  defendant.  The  parties  all  lived  in  the  neighbor- 
hood, and  consequently  ample  opportunity  was  afJbrded  of  inquiring  into 
the  ciiTumstances  under  which  the  assignment  took  place.  This  Avas  not 
the  ordinary  case  of  an  application  by  the  sheriflT  for  indemnity.  There 
was  here  no  bankruptcy.  Tomlinson,  in  support  of  the  rule,  stated  that 
an  application  had  been  made  by  the  sheriff,  both  to  the  execution-creditor 
and  to  the  assignee  of  the  property,  for  an  indemnity ;  but  it  had  been  re- 
fused by  both.  LirrLEDALE,  J.,  observed,  that  in  the  case  of  a  bankruptcy, 
it  was  a  matter  of  course  to  grant  time  to  the  sheriff  to  return  the  writ  until 
an  indemnity  was  given ;  and  here,  he  tiiought,  it  was  only  right  that  the 
sheriff  should  have  a  reasonable  time,  until  the  first  day  of  the  next  term, 
for  the  purpose  of  inquiring  into  the  matter.     Eule  absolute.     K.  B.  M.  T. 

1830.  ,Sutt07i  V.  Jones,  1  Leg.  Obs.  17.5. 
[*69]        *The  sheriff' seized,  under  an  execution  issued  by  Antrobus  against 

Lautour,  goods  which  were  in  the  possession  of  Beavan  under  a  bill 
of  sale  from  Lautour,  notwithstanding  notice  of  the  bill  of  sale.  The 
.sheriff  then  applied  to  Antrobus  and  to  Beavan  severally  for  an  indemnity 
before  preceeding  further,  but  both  refused.  Beavan  sued  the  sheriff  in 
trespass  for  the  seizure.  Rule  nisi  to  stay  proceedings  till  the  sheriff 
should  have  been  indemnified.  Upon  cases  being  shown,  Tindall,  C.  J. 
.said:  This  case  falls  within  the  general  principle,  that  the  .sheriff'is  not,  at 
his  own  expense,  to  fight  the  cause  of  the  contending  parties.  The  proceed- 
ings must  be  staid  till  an  indemnity  has  been  given,  and  without  pavment 
of  the  plaintiffs  copts,  because  the  plaintiff  has  refused  to  indemnify  when 
requested.  Rule  absolute.  Beavan  v.  Dawson,  6  Bingli.  566.  Vide,  also 
Keighiley  v.  Bircli,  3  Camph.  523  ;  Bai-nardy.  Leigh,  1  Stark.  R.  43  ;  King  v. 
Bridges,  7  Taunt.  294. 

Case  in  New  York,  against  a  sheriff"  for  a  false  return  of  nulla  bona  to  a 
fi.  fa.  The  defence  in  part  was,  that  a  third  person  claimed  the  goods, 
and  that  an  indemnity  was  thereupon  rec{uired,  but  not  given.  Per  Curiam. 
It  was  the  duty  of  the  sheriff  to  make  the  levy  without  any  indemnity 
whatever,  as  he  found  the  goods  in  the  hands  of  the  defendant  in  the  exe- 
cution ;  and  he  would  not  have  been  liable  to  an  action  as  a  trespasser,  if 
he  had  made  such  levy.  The  goods  were  pointed  out  to  bin;  as  the  goods 
of  the  defendant  in  the  execution  ;  he  was  exercising  acts  of  ownership  over 
them;  they  were  in  his  exclusive  custody  and  possession;  and  the  sheriff 
would  have  incurred  no  peril  from  the  act  of  levying.  If,  after  the  officer's 
first  duty  was  performed,  a  claim  to  the  property  had  been  interposed,  then 
a  jury  .should  have  been  called  to  determine  the  right  of  property.  If  by 
the  inquisition,  it  should  be  determined  that  the  right  of  property  was  in  the 
claimant,  then  the  return  upon  the  execution,  should  be  nulla  bona  ;  and 
such  a  finding,  although  it  would  not  be  conclusive  upon  the  question  of 
property,  would  nevertheless  justify  such  a  return.  Should  the  jury  de- 
clare the  property  to  be  in  a  third  person,  then  the  sheriff  could  not  be  com- 
pelled to  proceed  further,  without  a  full  irdemnity.  But,  in  the  first 
instance,  he  was  bound  to  make  a  levy,  and  there  is  nothing  in  this  case  to 
excuse  his  neglect  in  that  particular.  The  sheriflT  need  never  be  in  diffi- 
culty upon  this  point;  for  if  the  title  appears  doubtful,  or  the  proceedings 
hazardous,  the  Court  upon  application,  would  extend  the  time  for  the 
making  of  his  return  ;  or  he  might  file  a  bill  of  interi)leader,  and  stay  all 
proceedings  against  him,  until  the  right  of  property  was  settled.  Indeed, 
the  conflicting  claimants  could  l)e  compelled  to  litigate  their  claims;  and  a 
sheriff',  taking  the  proper  course,  would  never  be  subjected  to  damage  of 
any  kind.  In  this  case  the  sheriff'  refused,  or,  at  all  events,  neglected  to 
make  the  levy  ;  and  if  the  plaintiff  can  show  that  the  goods,  found  in  the 

Vol  II.— 6  (81) 


69-70       SLTREME  COURT  OF  IXDIAXA. 

Bosley  c.  Farquar  and  Another. 

possession  of  the  defendant  in  the  execution,  were  in  truth  his  property,  he 
i«  entitled  to  recover.      Williams  v.  Lowndes,  1  Hall,  579. 

(2)  There  is  a  difference  of  opinion  in  the  English  books  as  to  the 
effect  of  such  an  inquisition.  Crose,  J.  and  Kexyox,  C.  J.,  have  expressed 
an  opinion,  that  the  inquisition  would  justify  the  sheriff  in  returning,  if  so 
found,  that  the  defendant  has  no  goods  within  the  county  ;  or  that,  if  it  be 
found  that  he  has,  the  inquisition  will  mitigate  the  damage,  in  an  action  of 
trespass,  should  the  goods  turn  out  not  to  be  the  defendant's.  Farr  v.  New- 
man, 4  T.  R.  633,  648;  Roberts  v.  Thomas,  6  id.  88.  But  it  has  been  since 
decided,  that  the  inquisition  finding  the  goods  to  belong  to  a  third  person, 
is  not  admissible  evidence  for  the  sheriff,  even  in  mitigation  of  damages,  in 
an  action  against  him  for  a  false  return  of  nulla  bona.  Glossop  v.  Pole,  3 
M.    &  S.   17o.     Though  in   trespass  against   the   sherifi'by  a  third  person 

claiming  the  goods,  the  inquisition,  said  the  Chief  Justice,  in  the  case 
[••■70]  last-cited,  might  perhaps  he  evidence  as  to  *whetherthe  sheriff  had 
acted  maliciously.  Ibid.  It  is  also  held  that  an  inquisition  made 
bv  the  sheriff's  jury  to  ascertain  to  whom  the  property  of  goods  taken 
under  a  fi.  fa.  belongs,  though  found  in  favor  of  a  stranger  claiming  the 
goods,  is  not  admissible  evidence  in  an  action  of  trover  for  the  goods, 
brought  by  the  claimant  against  the  sheriff.  Latkow  v.  Eamar,  2  H.  Bl.  R. 
437. 

The  Indiana  law  is  as  follows:  When  any  person,  not  the  execution- 
defendant,  files  Nvith  the  officer  issuing  the  execution  a  claim  in  writing  to 
the  goods  levied  on,  supported  by  an  affidavit,  the  officer  who  has  levied  on 
the  property,  on  being  notified  of  the  filing  of  such  claim  and  affidavit, 
summons  three  householders  to  determine  the  right  of  property.  The  trial 
is  held  before  a  justice  of  the  peace  of  the  township  in  which  the  property 
is  found.  An  appeal  lies  from  the  decision  of  these  triors  to  the  Circuit 
Court  of  the  county.  In  all  cases  where  a  trial  of  the  right  of  property 
has  been  had,  the  decision,  whilst  unreversed,  is  conclusive  between  the 
parties.  No  officer  is  liable  to  any  prosecution  for  taking  the  goods  of  a 
stranger  in  execution  if  found  in  the  defendant's  possession,  unless  he  be 
informed  of  the  ownership  therein  previously  to  the  execution-sale.  R.  C. 
1831,  pp.  237,  238. 

(3)  Indictment  for  a  conspiracy.  The  evidence  for  the  prosecution  not 
being  closed  until  11  o'clock  at  night,  the  trial  was  adjourned  till  the  next 
morning,  and  the  jury  were  permitted  by  the  judge  to  retire  to  their  fami- 
lies for  the  night.  On  the  next  morning  the  jury  assembled,  and  the  trial 
was  concluded.  Verdict  of  guilty  against  three  defendants.  Motion  for  a 
rule  to  show  cause  why  anew  trial  should  not  be  granted,  in  consequence 
of  the  dispersion  of  the  jury  without  the  defendant's  knowledge.  Abott, 
C.  J.,  after  stating  that  the  dispersion  of  the  jury  did  not  vitiate  the  ver- 
dict, and  that  cases  similar  to  the  present  had  of  late  years  frequently 
occurred,  observed  :  "It  is  said,  that  in  some  of  those  instances  the  ad- 
journment and  dispersion  of  the  jury  have  taken  place  with  the  consent  of 
the  defendant.  I  am  of  opinion  that  that  can  make  no  difference.  I  think 
the  consent  of  the  defendant  in  such  case  ought  not  to  be  asked  ;  and  my 
reason  for  thinking  so  is,  that  if  that  question  is  put  to  him,  he  can  not  be 
supposed  to  exercise  a  fair  choice  in  the  answer  he  gives,  for  it  must  be 
supposed  that  he  will  not  oppose  any  obstacle  to  it;  for  if  he  refu.ses  to 
accede  to  such  an  accommodation,  it  will  excite  that  feeling  against  him, 
which  every  person  standing  in  the  situation  of  a  defendant  would  wish  to 
avoid.  I  am  also  of  opinion,  that  the  consent  of  the  judge  would  not  make, 
in  such  case,  that  lawful  which  was  unlawful  in  itself ;  for  if  the  law 
requires  that  the  jury  shall  at  all  events  be  kepi  together  until  the  close  of 
the  trial  for  a  misdemeanor,  it  does  not  appear  to  me  that  the  judge  would 
have  any  power  to  dispense  with  it.     The  only  difference  that  can  exist 

(82) 


MAY  TERM,  1827.  70-71 


Harris,  Administratrix,  v.  M'i^addin. 


between  the  fact  of  a  jury  separating  with  or  without  the  approbation  of 
the  judge,  as  it  seems  to  me,  is  this,  that  if  it  be  done  without  the  consent 
or  appi-obation  of  the  judge,  expressed  or  implied,  it  may  be  a  misdemean- 
or in  them,  and  they  may  be  liable  to  be  punished  ;  whereas,  if  he  gives  his 
consent,  there  will  be  no  such  consequence  of  a  separation.  But  thougii 
it  may  be  a  misdemeanor  in  them  to  separate  without  his  consent,  it  will 
not  avoid  the  verdict  in  a  case  of  this  kind,  as  it  Avould  if  the  law  required 
the  jury  to  be  absolutely  kept  together.  Now,  it  is  not  surmised  in  this 
case,  that  during  the  night  (for  it  was  during  night  only  that  the  separa- 
tion took  place)  any  attempt  was  made  to  practice  upon  the  jury.  If  any 
thing  like  that  could  have  been  shown,  the  Court  would  require  that  mat- 
ter to  be  investigated.  The  other  judges  expressed  similar  opinions  ;  and  the 
rule  was  refused.  The  King  v.  Wool/,  1  Chitt.  R.  401.  Vide  Barloiv  v.  The 
State,  Nov.  term,  1827,  post  and  note.  Smith  v.  Thompsmi,  1  Cowen,  221  and 
note. 


[*71]       *Harris,  Administratrix,  v.  M'Faddin. 

Officer — -Justified  by  Writ. — The  warrant  of  a  justice  of  the  peace,  is- 
sued under  the  .statute  of  1824,  commanding  the  constable  to  distrain  for 
rent, — is  a  justification  to  the  officer  in  an  action  of  replevin  by  the  ten- 
ant, independently  of  the  landlord's  claim  (a). 

S.\ME — Practice. — If  the  constable  justify  under  his  warrant,  and  obtain 
judgment  on  a  demurrer  to  his  plea,  he  is  entitled  to  a  return  of  the 
goods. 

Landlord  and  Tenant — Distraint. — If  the  tenant  wish  to  contest  the 
landlord's  right  to  distrain,  to  rely,  for  example,  on  7ion  tenuit  or  riens  in 
urrear, — he  should  institute  his  suit  against  the  landlord  (6). 

Demurrer — Joinder. — The  defendant,  on  a  demurrer  to  his  plea,  obtained 
a  judgment,  without  having  joined  in  a  demurrer  :  Held,  that  the  plain- 
tiff could  not  assign  the  want  of  the  joinder  for  error. 

APPEAL  from  Vigo  Circuit  Court. — This  was  an  ac- 
tion of  replevin  by  Harris,  administratrix,  against  M'Fad- 
din. The  declaration  is  in  the  usual  form.  The  defend- 
ant pleaded  specially,  that  he  took  the  goods  by  virtue 
of  a  distress  warrant,  directed  to  him  as  constable  of  the 
township,  issued  by  a  justice  of  the  peace,  commanding 
him  to  distrain  the  goods  of  the  plaintift"  for  one  year's 
rent  due  to  Modisett,  the  plaintiff's  landlord.  The  war- 
rant is  set  out  in  the  plea.  General  demurrer  to  the  plea, 
and  judgment  for  the  defendant,  not  only  of  nil  capiat 
per  breve,  but  also  for  a  return  of  the  goods. 

(a)  2  Ind.  579.     (6)   5  Blkf.  489. 

(83) 


71-72       SUPREME  COURT  OF  INDIANA. 

Harris,  Adnainistratrix,  v.  M'Faddin. 

Blackford,  J. — In  this  case,  if  the  defendant  be  viewed 
as  a  bailiff  making  cognizance,  the  plea  is  defective  for 
not  averring  the  right  of  the  landlord.  We  conceive, 
however,  that  this  plea  is  to  be  tested  by  a  different  prin- 
ciple from  that  which  governs  a  cognizance.  The  statnte 
of  1824,  p.  160,  has  changed  the  practice.  The  landlord 
can  not  in  person,  or  by  his  bailiff,  take  the  goods.  He 
must  go  before  a  justice  of  the  peace  of  the  township, 
and,  on  complaint  under  oath,  obtain  a  warrant  com- 
manding the  constable,  to  whom  it  is  directed,  to  make 
the  distress.  This  warrant,  issued  by  a  competent  author- 
ity, is  obligatory  on  the  officer,  and  must  be  a  justifica- 
tion to  him  independently  of  the  landlord's  claim.  Rob- 
erts et  al.  V.  Tennell,  4  LittelFs  R.  286.  The  judgment  of 
the  Circuit  Court,  therefore,  upon  the  demurrer,  that  tlie 
plaintiff  take  nothing  by  his  writ,  was  correct. 

We  are  also  of  opinion,  that  no  objection  can  be  made 
to  the  award  of  a  return  of  the  goods.  The  plea 
[*72]  shows  that  the  ^original  taking  by  the  defendant 
was  lawful,  and  nothing  appears  of  record  incon- 
sistent with  the  continuance  of  his  right  to  the  possession. 

If  the  plaintiff"  wished  to  contest  the  right  of  the  land- 
lord to  distrain — to  rely,  for  example,  on  non  tenuit,  or 
rie7is  in  arrear — he  should  have  instituted  his  suit  against 
the  landlord.  It  is  against  him  or  his  bailiff,  not  against 
the  officer  of  the  law,  that  in  cases  of  distress  for  rent, 
the  person  distrained  on,  when  he  replevies,  gives  bond 
for  the  due  prosecution  of  his  suit. 

The  want  of  a  joinder  in  demurrer  is  assigned  for  error. 
There  is  nothing  in  this  objection.  The  plaintiff  had  a 
right  to  rule  the  defendant  to  join,  or  to  add  the  joinder 
himself,  and  can  not  now  for  the  first  time  object  to  the 
omission. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Judah,  for  the  appellant. 


(84) 


MAY  TERM,  1827.  72-73 


Lutz  and  Another  v.  Lutz. 


LuTz  and  Another  v.  Lutz. 

Will — Constrxtction — Household  Goods. — A  testator,  commencing  his 
will  by  expressing  an  intention  to  dispose  of  all  his  worldly  estate,  de- 
vised to  his  wife  all  his  lands  and  tenements  for  life,  together  with  all 
his  household  goods  and  chattels.  If  his  wife  married  again,  she  waa 
still  to  enjoy  the  real  estate,  but  without  power  to  dispose  thereof  except 
by  leasing  it  for  a  term  not  exceeding  one  year  at  a  time,  [f  she  mar- 
ried and  died  without  issue,  the  real  estate  was  to  descend  to  a  nephew 
of  the  testator ;  but  if  she  had  issue,  the  estate  was  to  descend  to  such  is- 
sue. The  testator  died,  having  made  no  further  disposition  of  his  prop- 
erty, and  leaving  no  children. 

On  a  claim  by  the  testator's  brothers,  his  heirs  at  law.  Held,  that  all  the 
personal  estate  including  moneys  and  obligations  passed,  by  the  will,  to 
the  widow  of  the  deceased. 

Same — Intention. — The  construction  of  a  will  depends,  not  so  much  upon 
any  rigid  principle  of  law,  as  upon  what  appears  by  the  will  to  have 
been  the  testator's  intention  (o). 

ERROR  to  the  Clark  Circuit  Court. 

Scott,  J. — Casper  Lutz,  in  his  last  will  and  testament, 
bequeathed  to  his  wife  Catharine  all  his  lands  and  tene- 
ments, with  all  the  beneiits  and  profits  thereunto  belong- 
ing, to  be  freely  possessed  and  enjoyed  by  her  during  her 
natural  life,  together  with  all  his  household  goods  and  chat- 
tels; and  made  and  ordained  her  his  executrix,  and  his 
brother  Henry  Lutz,  executor.  A  further  provision 
[*73]  of  the  will  is,  that  should  his  said  wife  ^Catharine 
marry  after  his  decease,  she  should  still  possess  and 
enjoy  his  real  estate;  but  should  have  no  power  to  dis- 
pose of  the  same,  or  to  lease  it  for  more  than  one  year  at 
a  time.  And  should  she  die  without  issue  of  her  body, 
then  in  that  case,  the  said  real  estate  should  descend  to 
Alexander  Joseph  Lutz,  the  son  of  his  brother,  Henry 
Lutz.  But  in  case  the  said  Catharine  should  have  a 
child  or  children,  then  the  said  real  estate  should  descend 
to  the  said  child  or  children;  and  the  testator  directs  his 
executors  to  collect  his  debts,  &c.     On  the  6th  of  Sep- 

(«)  7  Ind.  282  ;  16  Id.  479 ;  35  Id.  116  ;  39  Id.  58. 

(85) 


73-74       SUPREME  COURT  OF  INDIANA. 

Lutz  and  Another  r.  Lutz. 

tember,  1818,  Casper  Lutz  died  without  children,  and  his 
brothers,  Henry  and  Jacob,  filed  their  bill  in  the  Circuit 
Court,  complaining  that  the  said  Catharitie,  in  violation 
of  the  provisions  of  the  said  will,  retained  the  exclusive 
possession  and  control  of  the  goods,  chattels,  moneys,  and 
obHgations  of  said  estate,  except  about  300  dollars ;  and 
stating,  also,  that  the  said  moneys  and  eft'ects  do  not  pass 
to  the  said  Catharine  by  the  will;  but  that  they  descend 
to  the  complainants  as  the  brothers  and  legal  heirs  of  the 
deceased.  There  was  a  demurrer  to  the  bill,  and  decree 
in  favor  of  the  defendant. 

The  only  question  presented  for  our  consideration  is, 
whether  the  moneys  and  obligations  go  to  the  widow  or 
descend  to  the  heir  at  law,  as  property  not  disposed  of  by 
the  will? 

This  is  not  an  instrument  in  which  the  intention  of  the 
maker  must  yield  to  an}'^  rigid  principle  of  law.  The  in- 
tention of  the  testator,  in  such  cases  as  the  present,  must 
prevail.  As  this  instrument  was  evidently  not  drawn  by 
a  skillful  hand  we  must  seek  for  the  intention  of  the  tes- 
tator, rather  from  its  general  features  than  from  a  strict 
grammatical  construction  of  language.  The  whole  diffi- 
culty seems  to  have  arisen  from  the  word  household  being 
used  in  that  clause  of  the  will,  which  disposes  of  the  per- 
sonal estate.  If  we  suppose  the  word  all  as  having  ap- 
plication to  the  word  chattels,  as  well  as  to  household  goods, 
then,  by  supplying  the  ellipsis,  the  bequest  would  include 
all  his  household  goods,  and  all  his  chattels;  which  would 
be  all  his  personal  estate.  Or,  if  the  word  household  be 
rejected  as  useless  and  unmeaning,  the  same  result  fol- 
lows: and  we  are  the  more  strongly  inclined  to  believe 
that  this'was  the  intention  of  the  testator,  from  his  clear 
expression,  at  the  commencement  of  the  instrument,  of 
his  intention  to  dispose  of  the  word)}'  estate  where- 
[*74]  with  it  had  pleased  God  to  *bless  him  in  this  life. 
Comparing  this  declaration  of  the  testator's  inten- 
tion, with  his  subsequent  distribution,  we  can  not  hesi- 

(86) 


jVIAY  term,  1827.  74 


Parks,  Administrator,  r.  Perry,  in  Error. 


tate  to  believe  that  his  design,  in  the  clause  above  alluded 
to,  was  to  give  his  wife  all  his  personal  estate;  and  not  to 
leave  the  moneys  and  bonds,  forming  so  important  a  part 
of  it,  undisposed  of  (1).  We  therefore  think  the  decision 
of  the  Circuit  Court  correct. 

Per  Curiam. — The  decree  is  affirmed  with  costs. 

Thompson  and  Nay  lor,  for  the  plaintiffs. 

Hawk,  for  the  defendant. 

(1)  "The  first  and  great  rule  in  the  exposition  of  wills,  to  which  all  other 
rules  must  bend,  is,  that  the  intention  of  the  testator  expressed  in  his  will 
shall  prevail,  provided  it  be  consistent  with  the  rules  of  law.  Doug.  322. 
1  Bl.  R.  672.  This  principle  is  generally  asserted  in  the  construction  of 
every  testamentary  disposition.  It  is  emphatically  (he  irill  of  the  person 
who  makes  it,  and"  is  defined  to  be  '  the  legal  declaration  of  a  man's  inten- 
tions, which  he  wills  to  be  performed  after  his  death.'  2  Bl.  Comm.  499. 
These  intentions  are  to  be  collected  from  his  words,  and  ought  to  be  carried 
into  eflfect  if  they  be  consistent  with  law. 

"  In  the  construction  of  ambiguous  expressions,  the  situation  of  the  parties 
may  very  properly  be  taken  into  view.  The  ties  which  connect  the  testator 
with  his  legatees,  the  affection  subsisting  between  them,  the  motives  which 
may  reasonably  be  supposed  to  operate  with  him,  and  to  influence  him  in 
the  disposition  of  his  property,  are  all  entitled  to  consideration  in  expound- 
ing doubtful  words,  and  ascertaining  the  meaning  in  which  the  testator 
used  them."     Per  Marshall,  C.  J.,  in  Smith  v.  Bell,  6  Peters,  68,  75. 


Parks,  Administrator,  v.  Perry,  in  Error. 
Will— Priority  of  Legacies. 

A  WILL,  after  directing  the  personal  estate  to  be  sold, 
and  the  real  estate  leased  until  the  rents,  with  the  pro- 
ceeds of  the  sale  of  the  personal  property,  should  be  suf- 
ficient to  pay  the  after-named  legacies,  contained  tlie  fol- 
lowing provision  :  "  I  will  and  bequeath  to  my  sister  Isa- 
bel the  sum  of  50  dollars  annually,  to  be  paid  out  of  the 
rents  of  the  place  and  the  proceeds  of  the  sale  of  my  per- 
sonal property,  and  continued  until  the  following  sums 
are  paid."  The  will  then  gave  several  legacies,  and  di- 
rected that  after  their  payment,  the  real  estate  should  be 
sold  and  a  distribution  made. 

Held,  that  in  each  ^-ear  the  50  dollars  were  to  be  paid 
to  Isabel,  before  any  payment  to  the  other  legatees. 

(87) 


75  SUPREME  COURT  OF  INDIANA. 


Neighbors  v.  Simmons. 


[^i'vS]  *Neighbors  V.  Simmons. 

Written  Contract — Statute  of  Limitations. — At  the  foot  of  an  account 
containing  several  items,  charged  in  1817,  there  was  the  following  ac- 
knowledgment:  "I  acknowledge  the  above  account  to  be  just. —  Thos. 
Neighbors."  Held,  that  this  acknowledgment  was  a  written  contract 
which,  under  the  act  of  assembly,  was  not  barred  by  the  statute  of  limit- 
ations (o). 

ERROR  to  the  M:irio;i  C'lii-uit  Court. 

HoLMAN,  J. — Assumpsit  by  Simmons  against  Neighbors. 
The  declaration  states  that  the  defendant,  on  the  14th  of 
April,  1817,  made  his  certain  acknowledgment  in  writing, 
whereby  he  acknowledged  that  he  was  indebted  to  the 
plaintiff  in  the  sum  of  112  dollars  and  62  cents,  whereby 
he  became  liable,  &c.,  and  in  consideration  thereof  prom- 
ised to  pay,  &c.  Plea,  non-assumpsit  within  five  years. 
Deiimrrer  and  judgment  for  the  plaintiff. 

The  contract,  on  which  the  action  is  founded,  is  an  ac- 
count of  sundry  items  in  favor  of  Simmons  against  Neigh- 
bors, amounting  to  112  dollars  and  62  cents;  the  first  item 
of  which  bears  date  the  20th  of  January,  1817,  and  the 
last  item  the  14th  of  April,  in  the  same  year;  at  the  foot 
of  which  there  is  this  writing:  "  I  acknowledge  the  above 
account  to  be  just. Thos.  Neighbors."  The  act  of  as- 
sembly provides,  that  no  statute  of  limitations  shall  be 
pleaded  as  a  bar,  or  operate  as  such,  to  any  action  founded 
on  an  instrument  or  contract  in  writing,  whether  the  same 
be  sealed  or  unsealed  (1).  We  are  of  opinion  that  the 
written  acknowledgment  of  this  account  forms  a  contract 
m  writing;  and  that  the  plea  of  the  statute  of  limita- 
tions, in  this  case,  was  inadmissible. 

With  the  refusal  of  the  Circuit  Court  to  continue  the 
cause  we  have  nothing  to  do:  the  affidavit  to  continue 
the  cause  is  no  part  of  the  record. 

(a)  See  12  Ind.  174 ;  3  Id.  275. 

(88)       • 


MAY  TERM,  1827.  75-76 

Maguire  v.  Nowland. 

Per  Curiam. — The  judgment  is  affirmed  with  1  per  cent. 
damages  and  costs. 

Sweetser  and  Wick,  for  the  plaintiff. 
Fletcher,  for  the  defendant. 

(1)  R.  C.  1824,  p.  291.     Ace.  E.  C.  1831,  p.  401. 


[*76]  *Maguire  v.  Nowland. 

Statutes — Prospective — Jurisdiction. — The  act  of  1827,  giving  the  Su- 
preme Court  jurisdiction  in  certain  cases  decided  by  the  Circuit  Court  on 
appeal  from  the  judgment  of  a  justice  of  the  peace,  is  prospective  only, 
and  does  not  apply  to  cases  determined  by  a  justice  before  the  taking  ef- 
fect of  the  act  (a). 

ERROR  to  the  Marion  Circuit  Court. 

Blackford,  J. — This  judgment  of  the  Circuit  Court 
was  in  a  case  from  a  Justice's  Court.  Previously  to  the 
late  act  of  the  legislature,  approved  the  22d  of  January, 
1827,  this  Court  had  no  jurisdiction  of  such  cases.  That 
act  makes  some  alterations  in  the  mode  of  proceeding  be- 
fore justices  of  the  peace;  and,  where  the  judgment  of 
the  Circuit  Court  is  in  a  case  where  the  judgment  of  the 
justice  exceeds  20  dollars,  the  act  gives  this  Court  juris- 
diction of  the  cause.  We  are  of  opinion,  however,  that 
this  act  of  the  legislature  is  prospective  only,  and  was  not 
intended  to  embrace  any  cases,  except  where  the  rendi- 
tion of  the  justice's  judgment  is  subsequent  to  the  taking 
effect  of  the  statute.  The  judgment  of  the  justice,  in  the 
case  before  us,  was  rendered  long  before  the  taking  effect 
of  the  act  above  referred  to  (1). 

Per  Curiam. — The  cause  is  dismissed  for  want  of  juris- 
diction. 

Sweetser  and  Wick,  for  the  plaintiff. 

Fletcher,  for  the  defendant. 

(a)  See  7  lud.  59  ;   16  Id.  84. 

(89) 


76-77        SUPREME  COURT  OF  INDIANA. 


Jamison  r.  Buckner. 


(1)  The  law  on  the  subject  is  now  as  follows:  "  Writs  of  error  issuing 
from,  and  appeals  made  to  the  Supreme  Court,  shall  extend  to  all  judg- 
ments and  decrees,  given  ijy  any  of  the  inferior  Courts  of  record,  except 
such  judgments  as  have  been  or  may  be  rendered  by  any  of  the  inferior 
Courts,  confirming  or  reversing  the  judgment  of  any  justice  of  the  peace, 
where  the  amount  in  controversy,  inclusive  of  interest  and  costs,  is  under 
the  sum  of  twenty  dollars:  Provided,  that  in  all  cases  where  judgment  is 
rendered,  affirming  or  reversing  the  judgment  of  any  justice  of  the  peace, 
on  an  appeal  to  any  inferior  tribunal,  where  the  amount  in  controversy,  in- 
clusive of  interest  and  costs,  is  under  fifty  dollars,  if  a  supersedeas  shall  be 
refused,  the  Supreme  Court  shall  have  no  jurisdiction."     K.  C.  1831,  p.  149. 


[*77]  ^Jamison  v.  Buckner. 

Consideration — Failure  of — Common  Law  Kemedy. — The  act  author- 
izing a  defendant,  in  actions  of  assumpsit,  to  plead  a  want  or  failure  of 
consideration  specially,  is  cumulative,  and  does  not  take  away  the  party's 
right,  existing  before  the  act,  to  avail  himself  of  such  a  defence  under  the 
general  issue  (a). 

ERROR  to  the  Marion  Circuit  Court.  Assumpsit  by 
Buckner  against  Jamison.  Plea,  non-assumpsit.  Ver- 
dict and  judgment  for  the  plaintiff. 

Scott,  J. — On  the  general  issue,  in  an  action  for  as- 
sumpsit, the  Court  refused  to  hear  evidence,  on  the  part 
of  the  defendant,  of  a  failure  of  consideration.  By  our 
statute,  regulating  the  practice  in  suits  at  law,  the  de- 
fendant is  authorized  to  allege  the  want  or  failure  of  con- 
sideration, by  special  plea.  R.  C.  1824,  p.  295  (1).  Prior 
to  the  statute,  evidence  of  that  fact  could  have  been 
given  on  the  general  issue.  The  statute  is  cumulative, 
and  does  not  take  away  the  right  which  existed  prior  to 
its  enactment. 

Per  Cariayn. — The  judgment  is  reversed  with  costs. 

Fletcher^  for  the  plaintiff. 

Gregg,  for  the  defendant. 

(1)  Accord.  R.  C.  1831,  p.  405. 

(a)  See  4  Blkf.  529-556;   5  Id.  334  (note). 

END  OP^  MAY  TERM,  1827. 

(90) 


[*78]  *  CASES 

ARGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF  INDIANA, 


AT  INDIANAPOLIS,   NOVEMBER  TERM,   1827,   IN  THE  TWELFTH  YEAR  OF 
THE   STATE. 


White,  Administrator,  v.  Rankin  and  Others. 

Appearance — Waiver. — The  appearance  of  a  defendant  on  the  execution 
of  a  writ  of  inquiry,  without  objecting  to  the  previous  proceedings,  cures 
any  irregularities  as  to  the  time  when  the  capias  was  executed  or  the  dec- 
laration filed  (a). 

Error — Harmless. — The  awarding  of  a  writ  of  inquiry  after  the  defend- 
ant's failure  to  appear  on  being  called,  without  the  previous  entry  of  an 
interlocutory  judgment,  is  a  mere  informality,  and  can  not  be  assigned 
for  error. 

Parties — Descriptio  Personarum. — A  declaration  stated  that  A.,  B.  and 
C,  county  commissioners  of  the  county  of  Scott,  complained  of  the  ad- 
ministrator of  D.  for  money  had  and  received  by  the  intestate  to  the  use 
of  the  plaintiffs,  and  which  he  had  not  paid  to  the  plaintiffs :  Held,  that 
the  words,  "  county  commissioners  of  the  county  of  Scott,"  were  only  a 
descriptio  personarum. 

ERROR  to  the  Scott  Circuit  Court. — Assumpsit  by 
Rankin,  Hogland,  and  Mattliews,  commissioners  of  Scott 
county,  against  White,  administrator  of  White,  for  money 

(«)  9  Ind.  6. 

(01) 


78-79       SUPREME  COURT  OF  INDIANA. 

White,  Administrator,  v.  Kankin  and  Others. 

bad  and  received  by  tbe  intestate  to  tbe  use  of  tbe  plain- 
tiffs. The  defendant,  at  the  term  to  which  the  writ  was 
returnable  and  at  which  the  declaration  was  iiled,  failing 
to  appear  on  being  called,  and  the  Court  being  satislied 
that  the  process  had  been  served,  a  writ  of  inquiry  was 
awarded  to  inquire  of  the  damages,  &c.  At  a  subsequent 
term,  to  which  the  cause  had  been  continued,  and  at 
which  the  defendant  appeared,  the  damages  were 
[*79]  assessed  and  *final  judgment  was  rendered  for  the 
plaintiffs.  The  judgment  was  as  follows:  "It  is 
therefore  considered  by  the  Court,  that  the  plaintiffs  re- 
cover of  the  said  defendant,  as  administrator  as  aforesaid, 
the  sum  of,  &c.,  to  be  levied,  &c." 

Holm  AN,  J. — The  first  error  assigned  and  relied  on  in 
this  case,  is,  that  the  writ  of  inquiry  was  improperly 
awarded.  It  is  said,  that  the  capias  was  not  executed  ten 
days  before  the  term  of  the  Court  in  which  the  writ  of 
inquiry  was  awarded;  and  the  declaration,  it  seems,  was 
not  tiled  when  the  capias  issued,  but  was  filed  in  open 
Court,  and  but  one  day  before  the  defendant  was  called, 
and  the  writ  of  inquiry  awarded;  and  there  was  no  inter- 
locutory judgment.  The  awarding  of  the  writ  of  inquiry, 
without  an  interlocutory  judgment,  was  merely  informal. 
Had  the  writ  l)een  executed  the  same  term  in  which  the 
declaration  was  thus  filed,  the  defendant  might  have  had 
some  cause  of  complaint;  but  the  cause  was  continued 
for  several  terms;  and  before  the  inquest  of  damages,  the 
defendant  appeared  by  his  counsel.  Having  thus  ap- 
peared and  raised  no  objections  to  the  proceedings  in  the 
cause,  all  previous  irregularities  are  thereby  cured. 

A  second  train  of  objections  grows  out  of  the  declara- 
tion. The  declaration  states  that  Samuel  Rankin,  Spen- 
cer Hogland,  and  John  Matthews,  county  commissioners 
of  the  county  of  Scott,  complain  of  James  V.  "White,  ad- 
ministrator of  James  L.  White,  deceased,  of  a  plea  of 
trespass  on  the  case;  for  that  whereas  James  L.White,  in 
his  life  time,  was  indebted  to  the  plaintifis  in  the  sum  of 

(92) 


JN'OVEMBER  TERM,  1827. 


White,  Administrator,  v.  Eankin  and  Others. 


100  dollars,  for  so  much  money,  before  that  time,  and 
had  received  by  him  to  the  use  of  the  said  plaintiffs;  and 
the  breach  assigned  is,  that  neither  the  intestate,  nor 
the  administrator,  had  paid  the  said  sum  to  the  said 
plaintiffs. 

It  is  here  objected,  first,  that  the  plaintiffs  sued  as  a 
corporation,  and  appeared  by  their  attorney  at  law,  in- 
stead of  their  attorney  in  fact;  secondly,  that  during  the 
pendency  of  this  suit,  the  powers  and  duties  of  the  county 
commissioners  were  transferred,  by  act  of  assembly,  to 
the  board  of  justices;  and  that  the  commissioners  ceased 
to  have  any  legal  existence,  and  could  not  therefore 
maintain  the  suit;  thirdly,  that  the  commissioners  could 
sue  for  money  due  to  the  county  only,  which  money  is 
always  payable  to  the  county  treasurer,  and  that  there- 
fore the  breach,  in  this  case,  should  have  been, 
[*80]  that  the  ^money  was  not  paid  to  the  county  treas- 
urer. All  these  objections  are  answered  together 
by  a  reference  to  the  declaration.  The  plaintiffs  in  the 
Circuit  Court  do  not  appear  to  have  sued  as  a  corpora- 
tion, nor  for  moneys  due  to  the  county.  It  is  true  that 
they  style  themselves  county  commissioners,  but  the}'  do 
not  state  that  the  money  is  due  to  them  as  commissioners. 
They  lay  it  as  if  due  to  them  in  their  own  right,  for 
money  had  and  received,  not  to  the  use  of  the  county, 
but  to  their  own  use;  and  the  judgment  is  given  to  them 
in  their  own  right,  and  not  for  the  use  of  the  county.  If 
this  money  belongs  to  the  county,  the  way  is  open  for 
the  county  to  obtain  it;  but  there  is  nothing  in  this 
record  to  show  that  the  county  has  any  cUiim  upon  it; 
so  that  the  style  of  county  commissioners,  adopted  b}^  the 
plaintiffs,  can  only  be  considered  as  a  deseriptio  personarum. 

Per  Curiam. — The  judgment  is  affirmed  with  b  jper  cent. 
damages. 

Thornton,  TJwmjJson  and  Howk,  for  the  plaintiff". 
Nelson,  for  the  defendants. 


80-81       SUPREME  COURT  OF  INDIANA. 


Test  r.  Devers. 


Test  v.  Devers, 

Trespass — Complaint — Cured  by  Verdict. — The  complainant,  in  an  ac- 
tion of  forcible  entry  and  detainer,  stated  that  the  defendant  with  force 
and  arms,  unlawfully  and  forcibly  entered  upon  the  plaintiff's  land  (par- 
ticularly described),  and  him  the  plaintiff  with  force  and  arms  did  expel 
and  unlawfully  put  out  of  possession:  Held,  that  this  complaint  could 
not  be  objected  to  after  verdict,  for  not  showing  more  particularly  that 
the  plaintiff  had  peaceable  possession  of  the  premises  before  the  injury 
complained  of  («). 

iSame — Verdict. — The  verdict  in  the  Circuit  Court  for  the  plaintiff,  on  ap- 
peal, in  a  case  of  forcible  entry  and  detainer,  must,  as  on  the  trial  before 
the  justice,  be  signed  by  all  the  jurors. 

ERROR  to  the  Rush  Circuit  Court. 

Blackford,  J. — Devers  tiled  a  complaint  of  forcible 
entry  and  detainer,  before  two  justices  of  the  peace, 
against  Test,  and  obtained  a  verdict  and  judgment.  Test 
appealed  to  the  Circuit  Court.  The  verdict  of  the  jury 
there  was  as  follows :  "  We  of  the  jury  find  for  the  plain- 
tiff," The  Circuit  Court  rendered  judgment  of  restitu- 
tion on  the  verdict.  Test  has  brought  the  case  before 
this  Court  by  a  writ  of  error.  The  following  among 
others,  are  the  errors  assigned:  first,  the  complaint 
[*81]  filed  *is  insufficient;  secondly,  the  verdict  should 
have  pursued  the  form  prescribed  by  the  statute. 

The  objection  to  the  first  count  in  the  complaint  is,  that 
it  contains  no  averment  that  the  plaintifl'  had  the  peace- 
able possession  of  the  premises,  previously  to  the  injury 
complained  of.  As  to  that,  the  complaint  states,  that  the 
defendant  with  force  and  arms,  unlawfully  and  forcibly, 
entered  upon  the  plaintiff's  land,  (particularly  described,) 
and  him,  the  plaintiff,  with  force  and  arms  did  expel,  and 
unlawfully  put  out  of  possession.  This  we  consider  amply 
sufiicient  after  verdict.  Whether  the  objection  would 
have  had  any  weight,  had  it  been  previously  made,  no 
opinion  need  be  given. 

(a)  53  Ind.  279. 

(94) 


NOVEMBER  TERM,  1827.  81-82 

Test  I'.  Devers. 

There  is  another  count  in  the  complaint,  which  is  also 
objected  to;  but  as  the  iirst  is  good,  it  is  not  material  iu 
deciding  this  case,  to  examine  the  other. 

The  objection  made  to  the  verdict,  depends  upon  a  mere 
question  of  practice.  If  the  form,  given  by  the  statute 
in  cases  of  forcible  entry  and  detainer,  must  be  substan- 
tially pursued  in  the  Circuit  Court,  as  well  as  before  the 
justices,  then  this  verdict  is  insufficient.  In  Moore  v.  Read, 
May  term,  1822,  we  determined  that  a  verdict  in  the  Cir- 
cuit Court,  pursuant  to  the  form  in  the  statute,  was  cor- 
rect (1).  The  act,  prescribing  the  form  of  the  oath  to  the 
jury,  and  that  of  the  verdict,  the  nature  of  the  judgment, 
and  the  form  of  the  writ  of  restitution,  in  these  cases  be- 
fore justices,  authorizes  an  appeal  to  the  Circuit  Court, 
and  directs  that  the  Court  shall  hear  and  determine  the 
case,  agreeably  to  the  true  intent  and  meaning  of  that 
statute  (2).  The  legislature  probably  intended,  that  the 
subject  of  inquiry  for  the  jury,  the  forms  of  the  verdict, 
judgment,  and  writ  of  restitution,  in  the  Circuit  Court, 
should  be  the  same  in  substance  as  those  before  the  jus- 
tices, changing  only  what  is  necessary  to  be  changed. 
Indeed  no  reason  is  perceived,  why  more  particularity 
should  be  required  in  the  one  case  than  in  the  other;  or 
why  the  nature  of  the  inquiry,  of  the  verdict,  judgment, 
and  execution,  should  not  be  the  same  in  both.  Consid- 
ering, as  we  do,  that  that  similarity  is  required  by  the 
statute,  which  is  the  only  authority  for  this  proceeding  in 
forcible  entry  and  detainer,  the  verdict  in  the  present  case 
must  be  deemed,  in  substance,  defective.  According  to 
the  statute,  no  judgment  can  be  rccdered  in  these 
[*82]  cases  for  the  *plaintiff,  unless  the  verdict  be  signed 
by  all  the  jurors.  This  verdict  is  not  so  signed; 
and  for  that  reason  alone,  were  there  no  other,  the  judg- 
ment rendered  upon  it  can  not  be  supported  (3). 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

(95) 


82-83         SUPREME  COURT  OF  mDIANA. 

Cone  V.  Cotton  and  Another. 

Fletcher,  for  the  plaintiff. 

Sweetser  and  Smith,  for  the  defendant. 

(1)  Vol.  1  of  these  Rep.  177. 

(2)  R.  C.  1824,  p.  212.     Accord.     R.  C.  1831,  p.  265. 

(3)  Accord.     Ward  et  al.  v.  Ocrme  et  al..  May  term,  1834. 


Cone  v.  Cotton  and  Another. 

Oyer— Pkofert — Pleading. — Although  oyer  of  a  record  is  not  demanda- 
ble,  yet  if  profert  of  the  record  of  a  judgment  on  which  the  suit  is  brought 
be  made  and  oyer  granted,  the  defendant  may  demur  if  the  judgment  be 
of  no  validity.  So  if  the  judgment  be  of  a  justice's  Court  in  another 
state,  which  is  not  a  Court  of  record. 

Foreign  Judgment — Pleading — Jurisdiction. — A  scire  facias  was  issued 
by  a  justice  of  the  peace  in  Ohio  on  the  transcript  of  a  judgment  of  an- 
other justice  there  ;  and,  on  a  return  of  the  writ  "  not  found,"  judgment 
was  rendered  for  the  plaintiff.  On  that  judgment,  an  action  was  brouglit 
in  a  justice's  court  of  this  state.  Held,  that  the  judgment,  having  been 
rendered  without  service  of  the  writ,  or  the  return  of  two  nihils,  would 
not,  on  common  law  principles,  support  the  action.  Held,  also,  that  if 
the  judgment  was  authorized,  by  a  statute  of  Ohio,  on  one  return  of  "not 
found,"  the  declaration  should  have  shown  that  fact  («). 

Same — Jurisdiction — Proof. — The  constitution  of  the  United  States,  re- 
quiring full  faith  and  credit  to  be  given  in  each  state  to  the  judicial  pro- 
ceedings of  every  other  state,  does  not  apply  to  a  judgment  which  has 
been  rendered  without  the  defendant's  having  had  legal  notice  of  the  suit. 

ERROR  to  the  Shelby  Circuit  Court. 

HoLMAN,  J. — Debt  on  a  judgment  of  a  justice  of  the 
peace  of  the  state  of  Ohio.  The  plaintifl:"  made  profert 
of  an  authenticated  transcript  of  said  judgment.  The  de- 
fendants craved  oyer  of  the  transcript  which  was  granted- 
And  in  this,  it  is  said  by  the  plaintiff  that  the  Circuit 
Court  erred.  But  it  should  be  remembered,  that,  although 
oyer  of  record  is  not  properly  demandable,  3'et,  if  profert 
is  made,  and  oyer  granted,  no  error  is  committed. 
[*83]  So  as  it  respects  the  transcript  of  this  *judgment. 
It  is  not  a  record ;  but  as  both  parties  have  treated 

(a)  34  Ind.  531 ;  63  /d.  137  ;  18  Jd.  156  ;  8  Jd.  453. 

(96) 


NOVEMBER  TERM,  1827.  83 

Cone  V.  Cotton  and  Another. 

.  it  as  a  record,  we  see  no  reason  that  either  has  to  com- 
plain ;  and  more  especially  in  a  case  like  this,  where  the 
sufficiency  of  the  judgment  to  support  the  action  will  be 
the  same,  whether  it  is  adjudicated  upon  a  demurrer  to 
the  declaration,  or  when  shown  as  evidence  to  the  jury. 
The  defendants  having  obtained  oyer  of  the  transcript, 
demurred  and  had  judgment. 

The  transcript  is  as  follows:  Charles  Cone,  Sen.,  v.  Wil- 
liam Cotton,  Sen.,  and  William  Cotton,  Jan.,  (bail).  In 
transcript.  Transcript  from  the  docket  of  John  Garard, 
a  late  justice  of  the  peace,  in  and  for  the  township  of 
Crosby,  and  county  of  Hamilton,  and  state  of  Ohio.  Judg- 
ment entered  by  J.  Garard,  Esquire,  on  the  2d  of  Febru- 
ary, 1821,  against  defendant  for  the  sum  of  43  dollars  and 
44  cents.  The  same  had  been  taken  by  transcript  from 
the  docket  of  Joab  Comstock,  a  late  justice  of  the  peace 
in  and  for  the  township  of  Crosby,  and  county  of  Hamil- 
ton, state  of  Ohio.  Which  justices,  at  this  time,  are  both 
out  of  office.  The  date  of  the  judgment  entered  by  Joab 
Comstock,  Esquire,  is  30tli  of  March,  1820.  April  29th, 
1825,  I  issued  a  scire  facias  against  both  defendants,  re- 
turnable on  the  4th  May  next.  Scire  facias  returned  on 
the  4th  May.  Defendants  not  found.  May  the  4th,  I 
give  judgment  against  the  defendants  in  favor  of  the 
plaintiff  for  the  sum  of  54  dollars  and  34  cents,  and  costs 
of  suit. — John  D.  Moore,  J.  P. 

To  this  is  annexed  the  certificate  of  said  Moore,  that 
the  foregoing  is  a  true  transcript  of  the  proceedings  had 
before  him,  and  of  the  judgment  entered  by  him.  This 
is  followed  by  a  certificate  of  the  clerk  that  Moore  was  a 
regular  justice  of  the  peace;  the  certificate  of  the  presid- 
ing judge,  &c.  This  authentication  does  not  extend  to 
the  official  acts  of  Garard  and  Comstock;  but  as  this  ac- 
tion is  not  founded  on  the  judgment  given  by  either  of 
them,  but  on  the  judgment  given  by  Moore  on  the  scire 
facias,  it  is  not  directly  material  that  we  should  have  con- 
clusive evidence  that  either  Garard  or. Comstock  acted 
A^OL.  II.— 7  (97) 


83-84       SUPREME  COURT  OF  IXDIANA. 


Cone  V.  Cotton  and  Another. 


officially.  The  judo'ments  given  by  tliem  may  be  consid- 
ered as  only  recited  in  the  scire  facias,  and  requiring  no 
other  proof,  or  authentication,  than  is  required  of  any 
other  judgment  so  recited. 

This  transcript  gives  no  precise  information  of 
[*84]  the  object  of  *this  scire  facias.  But  whatsoever 
may  have  been  the  purpose  to  be  effected  by  it 
within  the  compass  of  the  common  law,  it  must  be  regu- 
lated by  the  principles  of  the  common  law.  Testing  this 
scire  facias  by  common  law  principles,  we  iind  that  it  has 
not  been  executed  in  such  a  way  as  would  authorize  a 
judgment.  AYhen  a  scire  facias  has  not  been  executed 
by  personal  service,  the  common  law  requires  that  there 
should  be  a  return  of  tw^o  "  nihils;  "  or,  what  in  this  coun- 
try may  be  considered  as  equivalent,  to  returns  of  "  not 
found."  This  scire  facias  was  not  executed  by  personal 
service,  and  there  was  but  one  return  of  "not  found;" 
which  would  not  warrant  the  judgment.  Even  if  that 
provision  in  the  constitution  of  the  United  States,  that 
requires  us  to  give  full  faith  and  credit  to  the  judicial  pro- 
ceedings of  other  states,  extended  to  the  judgments  of 
justices  of  the  peace,  it  could  not  require  us  to  consider 
such  judgments  valid,  if  given  without  notice,  or  what 
amounts  to  the  same  thing,  without  legal  notice.  See  1 
Stark.  Ev.  214,  215 ;  Bissell  v.  Bricjgs,  9  Mass.  R.  462 ; 
and  the  cases  cited  in  Borden  v.  Fitch,  15  Johns.  R.  121 
(1).  If  we  take  it  for  granted,  that  constructive  notice 
by  two  returns  of  "  nihil,"  as  authorized  by  the  common 
law,  would  be  sufficient;  yet  less  than  this  can  by  no 
means  suffice.  If  there  is  a  statute  of  Ohio,  authorizing 
a  justice  of  the  peace  to  give  judgment  on  a  scire  facias, 
on  one  return  of  "not  found,"  we  know  nothing  of  it, 
and  can  presume  nothing  about  it.  If  the  existence  of 
such  a  statute  had  been  averred  in  the  declaration,  we 
might  have  adjudicated  upon  its  effect;  as  it  is,  w^e  have 
nothing  to  do  with  it  (2).  As  the  case  stands  the  judg- 
ment on  which  the  plaintiff' relies  having  been  given  with- 

(98) 


NOVEMBER  TERM,  1827.  85-85 


Sackett  v.  Wilson,  Executrix. 


ou-t  notice,  either  personal  or  constructive,  is,  on  common 
law  principles,  a  mere  nullity;  and,  being  unaided  by  any 
averment,  forms  no  cause  of  action  whatever.  If  oyer  of 
this  transcript  had  not  been  granted,  and  the  cause  had 
passed  to  a  jury  on  the  issue  of  nil  debet,  and  the  tran- 
script had  been  otlered  in  evidence,  it  must  have  been  re- 
jected, as  affording  no  evidence  of  a  demand  against  the 
defendants;  so  that  the  result  would  have  been  as  it  now 
is — the  action  would  have  been  unsupported. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Wick,  for  the  plaintiff. 
Fletcher,  for  the  defendants. 

[*85]       *(1)  Vide  Holt  v.  Alloway,  post,  this  term,  and  note. 

(2)  Vide  Stout  v.  Wood,  Vol.  1  of  these  Rep.  71 ;  Elliott  v.  Ray,  ante  p.  31, 
and  note  (2).  An  action  of  debt  was  brought  in  New  York  on  the  judgment 
of  u  justice  in  Vermont.  The  declaration  averred  that  the  judgment  had 
been  rendered  on,  &c.  at,  &c.  in  Vermont,  by  J.  P.,  one  of  the  justices  of  the 
peace  within  and  for  the  county  of  Bennington,  then  and  still  being  such 
justice  and  having  full  power  and  competent  jurisdiction  in  said  cause,  by 
the  confession  of  the  defendant ;  and  that  the  justice  rendered  judgment  in 
favor  of  the  plaintifl'  for  171  dollars  debt  or  damages,  with  costs,  &c.  De. 
mnrrer  to  the  declaration  and  judgment  for  the  defendant.  The  Court  said, 
that  the  declaration  was  defective  in  not  setting  out  facts  sufficient  to  give 
jurisdiction  to  the  justice ;  that  the  statute  giving  jurisdiction  to  the  justice 
ought  to  have  been  pleaded  ;  and  that  the  general  averment  of  jurisdiction 
was  not  enough.  Sheldon  v.  Hopkins,  7  Wend.  435.  Vide  also  Thomas  v. 
Bobinson,  3  Id.  267 ;  Cleveland  v.  Rogers,  6  Id.  438. 


Sackett  z;.  Wilson,  Executrix. 

Decedent's  Estate— Claims— Pleading.— An  account,  commencing  "A. 
B.  debtor  to  C.  D.,"  and  then  setting  out  the  items,  dates,  sums,  &c.— was 
filed  in  the  Circuit  Court  upon  the  application  of  an  executor,  under  the 
statute  of  1824 :     Held,  that  the  account  was  sufficiently  particular. 

Abatement — Marriage  of  Defendant. — If  a  feme  sole  marry,  pending 
a  suit  against  her,  the  suit  does  not  abate ;  but  the  plaintiff  may  proceed 
against  her  alone,  without  noticing  the  marriage. 

ERROR  to  the  Marion  Circuit  Court. 
Blackford,  J.— The  plaintiff  had  an  account  against 
the  estate  of  Wilson,  of  which  estate  the  defendant  was 

(99) 


85-86        SUPREME  COURT  OF  IXDIAXA. 

Sackett  v.  Wilson,  Executrix. 

executrix.  In  conformity  to  the  statute,  the  executrix 
in  January,  1825,  required  the  plaintiff  to  tile  his  account 
in  the  Circuit  Court  for  examination.  The  plaintiff,  ac- 
cordingly, in  February  following,  tiled  a  copy  of  his 
account  in  the  clerk's  office.  At  the  following  term  in 
April,  and  at  the  subsequent  terms  until  the  reduction  of 
the  judgment  in  October,  182(3,  the  parties  regularly  ap- 
peared in  the  suit.  The  plaintiff,  at  one  of  those  terms, 
to-wit,  that  of  April,  1826,  suggested  of  record  the  mar- 
riage of  the  defendant  pending  the  suit,  which  was  ad- 
mitted ;  and  at  the  term  of  October,  1826,  he  again  sug- 
gested the  marriage,  and  moved  for  au  order  of  the 
Court,  making  the  husband  a  party  to  the  suit.  Upon 
the  motion  for  an  order  to  make  the  husband  a 
p86]  party  being  overruled,  the  plaintiti'  offered  *to 
prove  his  account,  but  the  Court  refused  to  permit 
him  to  do  so,  and  dismissed  the  cause. 

To  support  the  judgment  of  the  Circuit  Court,  the  de- 
fendant'  contends,  first,  that  the  account  filed  was  in- 
sufficient to  enable  him  to  plead ;  secondly,  that  the 
})laintifi'  was  proceeding  against  a  feme  covert,  without 
having  made  the  husband  a  party. 

This  appears  to  be  a  plain  case.  As  to  the  first  point, 
we  tliink  the  account  filed  is  sufficientl}'  particular  to 
come  within  the  provisions  of  the  statute.  It  commences 
as  follows :  Isaac  Wilson  debtor  to  Letus  Sackett.  It 
sets  out  the  items  of  the  account  particuhirly,  with  the 
dates,  sums,  &c.     The  statute  requires  no  more  (1). 

There  is  nothing  in  the  second  point.  The  Court  cor- 
rectly overruled  the  motion,  to  make  the  husband  a 
party;  that  could  only  be  done  by  scire  facias.  But  the 
plaintift"was  not  obliged  to  proceed  against  the  husband. 
Upon  the  failure  of  his  motion  to  make  the  husband  a 
part}',  he  offered  to  proceed  in  the  cause  against  the  de- 
fendant alone.  This  we  conceive  he  had  a  right  to  do. 
The  marriage  of  the  defendant  did  not  in  any  respect 
affect  her  liability.     At  the  commencement  of  the  action, 

(100) 


NOVEMBER  TERM,  1827.  86-87 

Mitchell  and  Others  v.  Merrill. 

she  was  a  feme  sole;  and  she  could  not,  by  taking  a  hus- 
band, abate  the  suit,  or  prevent  its  progressing  against 
her  alone.     1  Chitt.  PI.  45;  Hamm.  on  Part.  227  (2). 

The  Circuit  Court,  therefore,  committed  an  error  in 
dismissing  the  suit. 

Per  Curiam. — The  judgment  is  reversed.  Cause  re- 
manded, &c. 

Wick,  for  the  plaintiff'. 

Fletcher  and  Brown,  for  the  defendanto 

(1)  R.  C.  1824,  pp.  318,  319.     Stat.  1833,  pp.  113,  114. 

(2)  If  a  feme  sole,  during  the  pendency  of  a  suit  instituted  by  or  against 
her,  marry,  the  action  does  not  for  that  cause  abate,  but,  upon  the  sugges- 
tion on  record  of  the  marriage  with  the  name  of  the  husband,  the  suit  pro- 
ceeds against  or  in  favor  of  the  husband  and  wife,  and  is  determined  in  the 
same  manner  as  if  the  marriage  had  taken  place  before  the  commencement 
of  the  suit.     Stat.  1826,  p.  53.    Ace.  R.  C.  1831,  p.  410. 


[*87]  *MiTCHELL  and  Others  v.  Merrill. 

Bond — Condition — Demand. — In  an  action  on  a  penal  bond,  conditioned 
for  the  delivery  of  property  at  a  certain  time  and  place,  the  declaration 
need  not  aver  a  demand  of  the  property  at  the  place.  Aliter,  if  the  con- 
dition be  for  the  payment  of  money. 

Same — Tender  of  Performance. — A  tender  and  refusal  of  the  property 
(or  that  which  is  equivalent)  at  the  time  and  place  fixed  by  the  contract 
for  its  delivery,  vests  the  property  in  the  creditor;  and  puts  an  end  to 
his  right  to  sue  upon  the  contract  (a). 

Tender— Time — How. — The  plea  of  tender  in  such  n  c»<o.  need  not  state 
that  the  defendant  was  afterwards  ready,  or  that  he  1  rings  the  property 
into  Court. 

ERROR  >to  the  Harrison  Circuit  Court. — In  this  action 
Merrill  was  the  plaintiff"  below,  and  Mitchell,  Holcroft, 
and  Ileth,  were  the  defendants. 

Blackford,  J. — This  was  an  action  of  covenant,  founded 
on  a  writing  obligatory  to  the  following  effect:  The  ob- 
ligors bound  themselves  to  the  plaintiff  in  the  penal  sura 

(a)  18  Ind.  365. 

(101) 


87-88       SUPREME  COURT  OF  IXDIAXA. 

Mitchell  and  Others  c.  Merrill. 

of  197  dollars,  conditioned  for  the  delivery  of  certain 
horses,  to  the  sheriff  of  Harrison  county,  on  a  certain 
day,  at  the  house  of  Jordan  Vigus,  in  Corydon.  The 
plaintiff  avers  in  his  declaration  that  the  defendants  have 
not  performed  their  covenant  nor  has  either  of  them; 
that  the  horses  became  due  at  the  time  specified  in  the 
obligation,  are  still  due,  and  not  dehvered  to  the  plaintiff, 
nor  to  the  sheriff,  as  aforesaid,  eontrarj'  to  the  covenant; 
that  the  defendants,  though  often  requested,  have  not, 
nor  has  either  of  them,  before,  at  the  time,  or  since,  the 
horses  became  deliverable,  delivered  the  same  or  any  of 
them  to  the  plaintiff,  nor  to  the  sheriff,  nor  to  any  person 
for  them  or  for  either  of  them;  but  that  they  have  hith- 
erto wholly  neglected  and  refused,  and  still  do  neglect 
and  refuse  so  to  do.  To  the  damage  of  the  plaintiff  300 
dollars.  The  defendants  craved  oyer  of  the  writing  ob- 
ligatory, and  demurred  generally  to  the  declaration. 
The  Circuit  Court  decided  in  favor  of  the  plaintiff. 

The  objection  made  to  the  declaration,  is,  that  it  con- 
tains no  averment  of  a  demand  of  the  horses,  at  the 
place  specified  for  their  deliver}'  by  the  condition  of  the 
bond.  To  show  the  deficiency  of  the  declaration  in  this 
respect,  the  plaintiffs  in  error  have  referred  us  to  San- 
derson V.  Bowes,  14  East,  500 ;  Roioe  v.  Young,  2  Brod. 
and  Bingh,  165  ;    and   to  the  cases  of  Gilhj  v.  Springer, 

and  Palmer  v.  Hughes,  in  this  Court.  The  first 
[*88]    *and   two   last  cases  mentioned,  were  actions  on 

promissor}?^  notes  for  the  payment  of  monej';  the 
other  was  on  an  acceptance  of  a  bill  of  exchange :  all 
payable  at  a  particular  place.  They  are  not,  as  we  con- 
ceive, applicable  to  the  cause  we  are  considering.  This 
action  is  founded  on  a  bond  with  a  penalty,  conditioned 
for  the  delivery  of  property  at  a  certain  time  and  place. 
In  Sanderson  v.  Bowes,  and  Rowe  v.  Young,  the  Courts 
take  particular  care,  to  distinguish  the  cases  of  debt  upon 
penal  bonds,  from  those  they  were  examining;  and  ex- 
pressly admit  that,  in  the  former,  no  special  demand  was 

(102) 


NOVEMBER  TERM,  1827.  88-89 

Mitchell  and  Others  v.  Merrill. 

necessary  to  be  averred.  They  say,  that  a  compliance 
with  the  condition  of  the  bond,  to  avoid  the  penalty,  or 
whatever  is  equivalent  to  a  compliance,  is  matter  of  de- 
fence, and  must  be  pleaded.  It  is  true,  that  the  case 
before  us  is  not  an  action  of  debt,  but  of  covenant,  and  it 
may  be  thought  that  that  makes  a  difference.  Whether 
it  does  or  not,  would  be  a  proper  subject  of  inquiry,  if 
this  were  a  bond  conditioned  for  the  payment  of  money, 
but  as  it  is  not,  that  point  needs  not  to  be  considered. 
There  is  another  ground,  independently  of  this  being  a 
bond  with  a  condition,  upon  which  this  case  is  distin- 
guishable from  those  referred  to.  It  is  this :  Here  the 
obligation  is  for  the  delivery  of  property,  there  the  con- 
tracts were  for  the  payment  of  money.  This,  we  are  of 
opinion,  creates  a  wide  difference  between  the  cases.  No 
cause  ever  underwent  a  more  careful  examination  than 
that  of  Rowe  v.  Young.  The  twelve  judges  of  England 
all  delivered  their  opinions,  the  most  of  them  at  great 
length;  so  did  Lords  Eldon  and  Redesdale.  The  great 
question  in  the  House  of  Lords  was,  whether  the  plaintiff 
should,  in  his  declaration,  aver  a  demand  at  the  place; 
or  whether  it  should  be  left  to  the  defendant,  to  plead  a 
tender  at  the  place,  or  something  equivalent,  and  bring 
the  money  into  Court.  That  the  defendant  should  not 
be  driven  to  plead,  was  the  final  decision  of  the  Court, 
upon  this  strong  ground,  that  the  plea  of  tender  requires 
the  bringing  of  the  money  into  Court;  and,  therefore,  if  the 
defendant  be  compelled  to  plead,  he  must  transport  his 
money  to  the  Court,  however  distant,  though  he  may 
have  always  had  it  ready  at  the  place  where,  and  where 
only,  he  had  promised  to  pay  it.  That  was  the  consid- 
eration which  settled  the  case  of  Rowe  v.  Young,  making 
the  averment  of  a  demand  at  the  place  necessary, 
[*89]  in  actions  on  notes  and  acceptances  for  *the  pay- 
ment of  money,  and  that  was  the  consideration 
which  produced  the  decisions  of  this  Court,  in  Gilly  v. 
Springer,  and  Palmer  v.  Hughes,  (1). 

(103) 


89  SUPREME  COURT  OF  INDIANA. 

Mitchell  and  Others  v.  Merrill. 

The  case  we  are  now  considering,  is,  as  has  been  already 
observed,  of  a  character  altogether  different  from  those 
which  have  been  mentioned.  It  is  founded  on  a  contract 
for  the  delivery  of  property,  not  for  the  payment  of  money. 
In  this  case,  a  tender  and  refusal  of  the  property  at  the 
time  and  place  fixed  upon  for  the  delivery,  or  the  defend- 
ant's being  at  the  time  and  place  with  the  property  ready 
to  deliver  it,  and  the  plaintifi''s  not  attending,  nor  any 
person  for  him,  to  receive  it — constitute  a  complete  plea 
in  bar  of  the  action,  without  the  averment  of  a  readiness 
at  any  time  afterwards  to  deliver  it,  or  of  a  bringing  of 
it  into  Court.  By  the  tender  and  refusal,  or  that  which 
is  equivalent,  the  property  becomes  vested  in  the  creditor, 
and  his  right  to  sue  upon  the  contract  is  at  an  end. 
Slingerland  v.  Morse,  8  Johns.  R.  474.  The  consequence 
of  this  doctrine  is  clear : — The  being  afterwards  ready,  or 
the  bringing  of  the  property  into  Court,  not  being  essen- 
tial to  the  plea  of  tender,  in  a  case  of  this  kind,  the  foun- 
dation of  the  decisions  referred  to,  requiring  the  aver- 
ment of  a  demand  in  the  declaration,  instead  of  leaving 
the  defendarit  to  his  plea,  fails  entirely  in  the  ]iresent  case. 
Here,  the  obligors  bound  themselves  for  the  delivery  of 
■the  horses,  at  the  house  of  Jordan  Vigus,  in  Cory  don,  on 
a  certain  day.  It  was  not  material  to  them,  whether  the 
obligee  attended  or  not:  their  duty  was  to  be  at  the  place, 
on  the  day,  ready  to  deliver  the  property.  If  they  ne- 
glected thus  to  attend,  and  did  not  compl}'  with  their  ob- 
ligation, they  failed  in  their  contract,  and  are  liable  to  an 
action.  A  demand  by  the  obligee  was  not  a  precedent 
condition.  It  formed  no  part  of  the  consideration  of  the- 
bond.  The  obligors  could  have  complied  with  their  con- 
tract, and  they  were  bound  to  do  so,  whetlier  the  obligee, 
or  any  person  for  him,  attended  or  not.  Had  the  defend- 
ants been  ready,  at  the  time  and  place,  to  deliver,  and 
found  no  person  there  to  receive — the}^  could,  in  this  ac- 
tion against  them,  have  pleaded  that  fact  in  bar,  with  as 

(104) 


NOVEMBER  TERM,  1827.  89-90 

Booker  v.  Bowles. 

much   effect,  and  with   as  little  inconvenience,  as  they 
could  an  actual  delivery,  if  there  had  been  one. 

From  these  considerations,  we  are  of  opinion  that  the 
declaration  in   this   case  is  sufficient,  without  the 
[*90]    averment  of  a  *demand  at  the  particular  place; 
and  that  the  judgment  of  the  Circuit  Court,  there- 
fore, overruling  the  demurrer  was  correct. 

Per  Curiam. — The  judgment  is  affirmed,  with  1  percent. 
damages  and  costs. 

Nelson,  for  the  plaintiffs. 
Payne,  for  the  defendant. 

(1)  "  If  a  note  be  made  payable  at  a  banker's,  or  other  place,  in  the  body 
of  it,  a  presentment  at  that  place  must  be  averred  and  proved.  Sanderson 
V.  Bmves  and  others,  14  East,  500 ;  Roche  v.  Campbell,  3  Campb.  247.  But  if 
the  place  of  payment  is  merely  subscribed  at  the  foot  of  the  note,  it  is  no  part 
of  it,  and  must  not  be  inserted  in  the  declaration.  Exon  v.  Russell,  4  M.  & 
S.  505;  Williams  v.  Warinf/,  10  B.  &  C.  2.  But  see  Trecothickv.  Edwin,  I 
Stark.  Rep.  468 ;  where  the  whole  of  the  note  being  printed,  except  the 
names,  date,  and  sum,  and  a  place  of  payment  at  the  bottom  of  the  note 
being  also  printed,  it  was  holden  that  a  special  presentment  there  was  nec- 
essary. The  1  and  2  Geo.  4,  c.  78,  does  not  extend  to  promissory  notes." 
Hennell  on  Forms,  &c.,  112,  n  (5).  See  Palmer  et  ux.  v.  Hughes,  Vol.  1  of  these 
Eep.  228,  and  note  (2). 


Booker  v.  Bowles. 


Evidence — Secondary — Witness  to  Execution  of  Bond. — One  of  two 
subscribing  witnesses  to  a  bond,  being  called  to  prove  its  execution,  denied 
his  signature  :  Held,  that  the  other,  if  he  could  be  procured,  should  be  ex- 
amined ;  but  if  he  could  not  be  found,  secondary  evidence  might  be  re- 
sorted to  (a). 

Same.— If  a  subscribing  witness  deny  his  signature,  the  case  stands  in  the 
same  situation  as  if  his  name  were  not  on  the  instrument. 

APPEAL  from  the  Sullivan  Circuit  Court.  Bowles 
was  the  plaintiff  below,  and  Booker  the  defendant. 

Scott,  J. — Debt  on  bond.  Defendant  produced  a  count- 
er bond  to  which  there  were  two  subscribing  witnesses, 
one  of  whom  denied  his  signature,  and  the  other  did  not 

(a)  3  Blkf.  450. 

(105) 


90-91       SUPREME  COURT  OF  INDIANA. 


Booker  v.  Bowles. 


attend.  Defendant  then  oifered  to  prove  the  execution 
of  the  bond  by  other  evidence,  which  was  rejected  by  the 
Court.  There  was  a  verdict  and  judgment  for  the  phiintiff. 
The  rejection  of  the  evidence  offered  by  the  defendant, 
and  the  refusal  of  the  Court  to  grant  a  new  trial  on  that 
ground,  are  the  only  special  errors  assigned.  This  case 
can  not  be  distinguished  in  principle,  from  one  in  which 
no  subscribing  witness  appears.  When  the  witness  who 
was  called  denied  his  signature,  the  case  stood  in  the  same 
situation  as  if  his  name  was  not  on  the  bond  (1) ; 
[*91]  and  before  the  defendant  could  introduce  *testi- 
mony  of  an  inferior  grade,  it  was  his  duty  to  use 
the  same  diligence  to  procure  the  attendance  of  the  other 
subscribing  witness,  as  if  there  had  been,  originally,  but 
one  witness  to  the  bond ;  and  the  witness  failing  to  attend, 
after  such  diligence  used,  he  might  have  proved  the  exe- 
cution of  the  bond  by  secondary  evidence  (2).  This  posi- 
tion is  in  conformity  with  the  general  rule,  that  the  best 
evidence  of  which  the  nature  of  the  case  will  admit  must 
be  produced.  The  cases  of  Cunliffe  v.  Sefton,  2  East.  183, 
and  Barnes  v.  Trompowsky,  7  T.  R.  261,  are  directly  in 
point.     We  think,  therefore,  the   evidence  was   correctly 

rejected,  and  that  the  refusal  to  grant  a  new  trial  was  no 
error. 

Per  Curiam. — The  judgment  is  affirmed  with  b  per  cent. 

damages  and  costs. 

Tahbs,  for  the  appellant. 

Judah,  for  the  appellee. 

(1)  As  to  where  the  writing  is  considered  to  stand  as  if  the  subscribing 
witness's  name  were  not  on  it,  vide  note  to  Jones  v.  Cooprider,  Vol.  1,  of 
these  Eep.  47.  In  the  case  of  Swire  v.  Bell,  there  cited,  it  is  decided  that 
if  a  witness  be  interested,  at  the  time  of  attestation,  the  instrument  stands 
as  if  it  had  never  been  attested.  Tliere  is  a  case,  however,  in  whicii  it  is 
held  that  if  the  party  knowing  the  witness  to  be  interested,  recjuest  him  to 
attest  the  instrument,  lie  cannot  afterwards  object  to  him  as  incompetent. 
Honeywood  v.  Peacock,  3  Cam{)b.  196.  In  a  late  case  relative  to  the  question 
of  a  witness's  incompetency,  who  had  become  interested  after  the  attesta- 
tion. Best,  C.  J.,  observes-  This  is  an  action  upon  a  charty-party.  After 
the  execution  of  the  instrument,  tlie  attesting  witness  was.  In-  agreement 
with  tlie  i)laintift',  admitted  to  a  share  of  the  profits  whicli  the  plaintiff  ex- 
pected to  derive  from  his  bargain.     An  objection  was  taken  to  the  compe- 

(106) 


NOVEMBER  TERM,  1827.  91-92 


Booker  v.  Bowles. 


tency  of  the  witness,  and  his  evidence  was  rejected.  It  was  then  proposed 
to  prove  his  hand-writing :  this  proof  was  objected  to  and  the  objection 
allowed.  The  Court  are  of  opinion  that  this  evidence  was  properly  reject- 
ed. There  are  many  cases  where  a  subscribing  witness  has  acquired  an 
interest  after  the  execution  of  the  instrument  attested  by  him  in  which  it 
has  been  decided  that  the  })roof  of  his  hand-writing  may  be  received  to 
establish  such  instrument. 

The  hand-writing  of  a  subscribing  witness  who  has  been  appointed  an 
executor  or  administrator  \_Goclfrei/  v.  Norris,  1  Strange,  34  ;  Cunliffe  v.  Sejlon, 
2  East,  188,]  or  has  married  the  person  to  whom  the  instrument  was  given 
[Bucklet/  v.  iSmith,  2  Esp.  R.  697,]  has  been  allowed  to  be  proved.  We  do 
not  dispute  the  authority  of  any  of  those  decisions;  on  the  contrary,  we 
should  be  disposed  to  extend  the  principle  established  by  them  to  the  case 
of  a  man  entering  into  a  partnership,  and  becoming  interested  in  instruments 
by  acquiring  a  share  in  tlie  credits,  and  taking  upon  himself  the  responsi- 
bilities of  the  firm  of  which  he  becomes  a  member.  Necessity  requires 
that,  in  all  these  cases,  such  evidence  should  be  received,  as  otherwise 
parties  must  lose  the  rights  secured  by  the  instruments  attested,  or  forego 
accepting  of  situations  most   important  to   their  welfare.     It  would  be  a 

hard  thing,  if  the  law  were  to  say  that  a  man  should  not  become  an 
[*92]    executor  or    an   administrator,  or  accept  a   beneficial  ■■■partnership, 

without  giving  up  debts  due  to  the  estates  in  which  he  has  acquired 
an  interest.  But,  in  the  present  case,  the  witness  has  only  obtained  an 
interest  in  the  contract  which  he  was  to  prove,  and  that  interest  he  de- 
rived immediately  from  the  plaintiff,  who  proposed  to  call  him  :  the  plain- 
tiff can  not  complain  that  his  witness  is  disqualified,  when  he  himself  has 
been  the  cause  of  his  disqualification.  The  case  of  Forrester  v.  Pigou,  1  M. 
&  S.  9,  is  stronger  than  the  present.  The  plaintiff  in  that  ca.se  gave  the 
witness  an  interest  after  the  cause  of  action  accrued,  without  the  privity  of 
the  defendant,  and  yet  the  Court  would  not  allow  the  defendant  to  call 
him.     Hoviirw.  Stephenson,  5  Bing.  493. 

If  the  witness  subscribe  his  name  without  the  knowledge  or  consent  of 
the  parties,  the  instrument  must  be  proved  as  if  his  name  were  not  there. 
M'Oruw  v.  Gentry,  3  Campb.  232.  So,  if  the  name  of  a  fictitious  person  be 
subscribed  as  a  witness.     Fassett  v.  Brown,  Peake,  23. 

(2)  When  the  instrument  stands  as  if  the  witness's  name  were  not  on  it 
it  may  be  proved  by  some  person  who  knows  the  party's  hand-writing,  or 
who  was  present  at  the  time  of  execution. 

The  circumstance  of  the  witness  being  dead,  absent  from  the  country, 
having  become  blind,  &c.,  does  not  place  the  instrument  on  the  same  footing 
with  one  having  no  subscribing  witness.  In  such  ca.ses  resort  is  not  had  to 
a  person  acquainted  with  the  party's  hand-writing,  or  who  saw  him  exe- 
cute the  instrument ;  but  it  is  the  hand-writing  of  the  witness  that  is  then 
to  be  proved. 

In  the  note  to  Jones  v.  Gooprider,  referred  to  in  the  above  note,  a  question 
suggested,  whether  proof  of  the  signature  of  the  subscribing  witness,  when 
sdmissible,  is  prima  facie  sufficient,  without  proof  of  t.he  signature  of  the 
parly,  or  other  evidence  of  his  identity.  The  doubt  was  raised,  in  conse- 
quence of  the  following  remarks  of  Bayi.ey,  J  :  "It  is  laid  down  in  Mr. 
Phillips'  Treatise  on  the  Law  of  Evidence,  that  proof  of  the  hand-writing 
of  the  attesting  witness  is  in  all  cases  sufficient.  I  always  felt  this  diffi- 
culty, that  that  proof  alone  does  not  connect  the  defendant  with  the  note. 
If  the  attesting  witness  himself  gave  evidence,  he  would  prove,  not  merely 
that  the  instrument  was  executed,  but  the  identity  of  the  person  so  execu- 
ting it;  but  the  proof  of  the  hand-writing  of  the  attesting  witness  estab- 
lishes merely,  that  .some  person  assuming  the  name  which  the  instrument 
purports  to  bear,  executed  it ;  and  it  does  not  go  to  establish  the  identity  of 


(107: 


92-93       SUPREME  COURT  OF  INDIANA. 


.  Booker  r.  Bowles. 


that  person,  and  in  that  respect  the  proof  seems  t»  me  defective."  Nelson 
V.   Whitlall,  1  B.  &  A.  21. 

Since  that  opinion,  expressed  by  Bayley,  J.,  in  1817,  the  subject  has 
been  mentioned  in  the  English  Courts.  In  a  case,  in  1827,  an  agreement 
was  offered  in  evidence  on  proof  of  the  hand-M'riting  of  the  subscribing 
witness  who  was  dead.  It  was  objected  that  this  was  insufficient,  without 
proof  of  the  defendant's  hand-writing,  or  some  proof  that  he  was  the  party 
whose  signature  the  witness  had  attested  ;  and  for  this  was  cited  the  above- 
mentioned  opinion  of  Bayley,  J.  But  Tenderden,  C.  J.,  said,  that  the 
practice  had  been  otherwise ;  that  he  had  frequently  admitted  such  evi- 
dence; and  tliat  he  should  continue  to  do  so  until  his  opinion  was  correct- 
ed.    Page  V.  Mumi,  1  Moody  &  Malkin,  79. 

In  a  case,  in  1828,  a  power  of  attorney  was  offered  in  evidence  on  proof 
of  the  hand-writing  of  the  subscribing  witness  who  was  dead.  This  was 
objected  to,  and  the  above-named  opinion  of  Bayley,  J.,  was  cited.  Best, 
C.  J. — "I  have  a  great  respect  for  the  opinion  of  my  brother  Bayley,  but 
I  think  I  am  bound  in  such  a  case  to  act  as  my  predecessors  have  done.  It 
has  been  the  uniform  practice  only  to  prove  the  hand-writing  of  the  attest- 
attesting  witness,  and  I  am  of  opinion  that  it  is  the  most  convenient 
[•■■'93]  *course.  I  consider  that  mode  as  most  desirable  which  tends  to  dimin- 
ish the  number  of  witnesses."    Kay  v.  Brookman,  3  Carr  &  Payne,  555. 

There  is  another  case,  in  1828,  in  which  a  bond  signed'  only  by  the  de- 
fendant's mark,  was  offered  in  evidence.  The  subscribing  witness  had  been 
subsequently  appointed  an  executor  of  the  obligee,  and  was  now  the  plain- 
tiff in  the  suit.  The  witness's  hand-writing  was  proved,  and  some  slight 
evidence  given  of  the  part3''s  identity.  The  defendant  objected  to  the  ad- 
mission of  the  bond  in  evidence.  Tenterden,  C.  J. — There  is  some  evi- 
dence here  beyond  the  mere  proof  of  the  attesting  witness's  signature.  But 
if  there  were  no  other,  I  should  have  no  doubt  of  its  sufficiency.  If  the  ob- 
jection were  to  prevail,  it  would  often  be  impossible  for  the  obligee  of  a 
bond  to  recover,  when  the  subscribing  witness  was  dead,  and  the  obligor  a 
marksman.     Mitchall,  Ex'or,  v.  Johnson,  1  Moody  &  ^lalk.  176. 

In  ejectment,  in  1829,  a  lease  purporting  to  have  been  signed  by  the 
mark  of  the  party  was  offered  in  evidence.  The  jiroof  was,  the  hand- 
writing of  the  subscribing  witness  and  that  he  had  gone  abroad  ;  and  that 
the  defendant  had  spoken  of  the  term  which  he  had  under  the  lease.  On 
this  proof  Tenterdfn,  C.  J.,  permitted  the  lease  to  be  read.  Doe  v.  Paul, 
3Carr&  Payne,  613. 

In  the  note  of  Jones  v.  Cooprider,  some  of  the  cases  are  cited  in  which 
proof  of  the  witness's  hand-writing  had  been  admitted  on  account  of  Ills 
absence.  In  one  of  these  cases,  C'rosdy  v.  Percy,  the  proof  was  admitted 
when  diligent  inquiry  for  the  witness  had  been  made  at  his  usual  place  of 
abode,  and  information  received  that  he  had  absconded  to  avoid  his  credi- 
tors. But  a  different  doctrine  has  been  since  held.  Affidavits  were  intro- 
duced to  show  tliat  the  witness  could  not  be  found  at  his  office  wliere  in- 
quiries had  been  made  for  him;  and  that  the  report  was,  that  he  was  keep- 
ing out  of  the  way  to  avoid  his  creditors.  Park,  J. — The  general  rule 
applicable  to  ca.ses  of  this  description  must  be  strictly  followed,  viz :  that 
an  attesting  witness  must  be  called  to  prove  the  execution  of  a  deed,  or  his 
absence  must  lie  well  accounted  for.  Formerly  proof  of  the  hand-wriliug 
of  an  attesting  witness  was  only  admissilile  where  such  witness  \\';\a  <lead  ; 
and  I  can  remember  the  first  deviation  from  that  rule,  where  it  was  extend- 
ed to  cases  where  the  party  was  abroad,  or  out  of  the  jurisdiction  of  the 
Courts  of  this  country;  but  I  have  never  known  an  instance  where  his  tes- 
timony has  been  dispensed  with,  to  prove  the  execution  of  a  deed,  on  an 
affidavit  which  merely  stated,  that  it  was  believed  he  kept*  out  of  the  way 
in  order  to  avoid  an  arrest.  But  it  has  been  contended,  that  proof  of  liis 
hand-writing  was  admissible,  if  he  kept  out  of  the  way  at  the  instance  of 


(108) 


NOVEMBER  TERM,  1827.  93-94 


Jamison  v.  Heiulricks. 


.  ,  ■  .1  „;t  Tt  wnnni test  however,  on  the  face  of  the  afSda- 
the  defendant  in  the  suit  It  i.  f/'  '^^''' "";^^^.o;j,^t  of  his  own  peouniary 
vits,  that  if  he  kept  out  ot  the  way  it  ^^^^.^^^j^'f^l^^^r  that  an  attesting 
distress  and  ditticulties.  BuRROUGH,  J--1  ^^^'^^  ^^^^\{  \^,^,,,  he  be  out 
.vitness  must  be  ^^ll^^^o  prove  the  execu    on  o    a  ^ml    u         .^^^^^^^^^  ^^ 

^^jS2;£:!;:or  p^t;is:s  ?:.  &j^'  %^  o,h^,  e  j.  b.  Moor. 

^^Ividenee  was  oftered  of  the  -'^f  i^^.^'-^i^i-lriS^S 

vet  gone  so  far,  and  I  am  atra.d  to  e  tab  ish  a  P  «^e^'<j'.^       j    ^^  relaxation 
determine  when  a  patient  is  past  .=i  ^^ope  o    c   re      n  ^  c  .^^^^.^_ 

of  the  rules  of  evidence  were  permitted,  ^l^^;'-  ;^»    'f,/'^!;;  ^^^r        ho  would 
positions  and  recoveries.^    When  a  ^itnessMS  taken  m,   he^  a  ty 

iiipiiliiSilii 

■  whom  he  had  assigned  it_:     Held,  ^^at  it  was  not  ng,essary  lo  P 

to  call  the  subscribing  outness  to  P-ve  the  exea  tion  of  ^U.e^le^^^^  ^^^^^^_  ^^ 

Cress.  28. 


Jamison  v.  Hendricks. 


Trover-Demand.-A  liorse  which  was  the  property  of  A  was  purchased 
by  B.  at  a  sherifT's  sale  on  an  executicm  against  C.  After  B.  had  sufficien 
reason  for  believing  the  horse  to  be  A's  property,  he  exercised  ac  s  of 
ownership  over  him,  and  made  use  of  evasive  measures  to  prevent  A.  from 
obtaining  him.  Held,  that  A.  might  recover  in  trover  tor  the  horse 
a<-ainst  B.,  without  proving  a  demand  and  refusal. 

S,MF-SHERIFF-If  the  sheriff  take  and  sell   the  property  of    A.  on  an 
■  execution  against  B.  he  is  liable  to  the  owner,  in  trespass  or  trover,  without 

demand.  .  j.       n  „  ;„i,i..ff 

SAME-DAMAGES.-The  plaintifif  may  recover,  in   trover,  for   the  injury 

done  to  his  goods,  as  well  as  for  their  value. 

(109) 


94-95       SUPKEME  COUliT  OF  INDIANA. 

Jamison  v.  Hendricks. 

APPEAL  from  the  Marion  Circuit  Court. — Hendricks 
brouglit  an  action  of  trover  against  Jamison  for  a  liorse. 
Plea,  not  guilty.  Verdict  and  judgment  for  the  phiiutitf 
Lelow. 

HoLMAN,  J. — Trover  for  a  horse.  The  substance  of  the 
evidence,  as  set  forth  in  a  bill  of  exceptions,  was  that 
Hendricks  lent  the  horse  to  Davis,  in  Marion  county,  to 
ride  to  Corydon.  The  horse  was  taken,  in  execution,  at 
Corydon,  as  the  property  of  Davis,  and  sold,  and  Jamison 
became  the  purcliaser.  At  the  time  of  the  levy,  Davis 
proclaimed  that  the  horse  was  not  his,  but  belonged  to 
Hendricks.  Before  the  commencement  of  this  suit,  Jam- 
ison told  one  of  the  witnesses,  that,  when  Hendricks  canie 
in  search  of  his  horse,  he  was  out  at  grass.  After  the 
commencement  of  the  suit,  Davis  observed  to  Jamison, 
that  he  did  not  pity  him,  for  he  told  him  before,  that  the 
horse  was  the  property  of  Hendricks.  One  of  the  wit- 
nesses stated  that  the  horse  was  worth  30  dollars. 
[*95]  The  horse  was  purchased  by  ^Jamison  in  1822 ; 
this  action  was  commenced  in  1825  ;  and  the  trial 
was  had  in  October,  1826. 

The  defendant  moved  the  Court  to  instruct  the  jury, 
that  it  was  necessary  for  the  plaintiiF  to  prove  a  tortious 
conversion,  or  a  demand  and  refusal  of  the  horse.  The 
Court  gave  that  instruction.  The  defendant  further  re- 
quested the  Court  to  instruct  the  jury,  that  to  prove  a 
conversion  in  this  case,  it  was  necessary  to  prove  a  de- 
mand of  the  horse  and  a  refusal  to  deliver  him  up;  but 
the  Court  instructed  the  jury  that  the  using  the  horse  as 
his  own  by  the  defendant,  or  exercising  acts  of  owner- 
ship over  him,  was  a  conversion  of  the  property.  The 
jury  found  a  verdict  for  the  plaintiff  for  61  dollars.  The 
defendant  moved  for  a  new  trial,,  which  was  refused  by 
the  Court. 

The  point  most  relied  on  in  this  case,  arises  out  of  the 
instruction  of  the  Court,  that  proof  of  a  demand  and  re- 
fusal was  unnecessary.     This  instruction  of  the  Court  m 

(110) 


NOVEiMJiEK  TERM,  1827.  95-96 

Jamison  v.  Hendricks. 

to  be  taken  in  connection  with  the  whole  case,  as  it  stood 
before  the  jury.  The  officer,  on  an  execution  against 
Davis,  had  taken  the  property  of  Hendricks,  notwith- 
standing the  proclamation  of  Davis  that  the  property  was 
not  his,  and  was  liable  to  the  action  of  Hendricks,  either 
of  trespass  or  trover,  without  a  demand.  Jamison  before 
he  purchased  the  horse  was  notified  by  Davis  that  the 
horse  belonged  to  Hendricks.  This  notice,  it  is  true,  did 
not  come  from  a  source  in  whicli  Jamison  was  bound  to 
place  full  confidence;  yet  it  was  sufficient  to  put  him 
upon  his  guard;  and  to  induce  him  to  take  care  what  he 
was  purchasing.  This,  taken  in  connection  with  tlie 
statement  of  Jamison,  when  Hendricks  came  for  his 
horse,  and  was  prevented,  by  some  evasion,  from  seeing 
or  getting  possession  of  him,  he  being  kept  out  of  the 
way,  that  the  horse  was  "  out  at  grass,"'  presents  a  chain 
of  circumstances,  sufficient  to  warrant  this  action  without 
a  regular  demand  and  refusal;  inasmuch  as  they  show 
that  Jamison  must  have  been  exercising  acts  of  owner- 
ship over  the  horse,  after  he  had  sufficient  reason  to  be- 
lieve that  he  was  the  property  of  Hendricks;  and  made 
use  of  evasive  measures  to  prevent  Hendricks  from  ob- 
taining him.  In  the  case  of  Baldwin  v.  Cole,  6  Mod.  212, 
it  is  said  that  the  denial  of  goods  to  him  who  has  a  right 
to  demand  them  is  an  actual  conversion.  And  in  the 
case  of  La  Place  v.  Aiqyoix,  1  Johns.  Cas.  -106,  the  defend- 
ant's admission,  that  he  had  the  plaintiff's  goods, 
[*96]  and  that  they  were  *lost,  was  held  to  be  evidence 
of  a  conversion  without  proof  of  a  demand  and 
refusal.  See  also  3  Stark.  Ev.  1496,  and  various  other 
authorities  there  cited ;  which  lead  to  the  conclusion  that 
the  jury  in  this  case,  were  authorized  to  find  that  the 
defendant  had  converted  the  horse  to  his  own  use. 

The  damages  given  by  the  jury  are  perhaps  more  than 
in  strict  justice  ought  to  have  been  given;  but  as  the 
defendant  had  been  about  four  years  in  possession  ui'  tlie 
horse,  and  as  the  plaintiff  is  entitled  to  recover  for  the 

(111) 


96-97       SUPREME  COURT  OF  INDIANA. 


Durham  v.  Musselman. 

injury  done  to  his  goods,  as  well  as  for  their  value,  (1 
Stark.  Ev.  199,  in  note,  and  the  case  there  cited,) — we  are 
not  prepared  to  say,  that  the  damages  are  so  conclusively 
excessive,  that  the  Circuit  Court,  in  the  exercise  of  a 
sound  legal  discretion,  was  bound  to  grant  a  new  trial  on 
that  account. 

Per  Curiam. — The  judgment  is  affirmed,  with  1  per  cent. 
damages  and  costs. 

Nelson,  for  the  appellant. 

Fletcher,  for  the  appellee. 


Durham  v.  Musselman. 

Trespass  —  Malice  —  Probable  Cause. — A  declaration  contained  two 
counts.  The  1st  stated  that  the  defendant,  on  his  unenclosed  land  in  the 
county,  cut  a  tree  so  that  it  was  nearly  ready  to  fall,  and  set  it  on  fire ; 
and  that  the  tree  afterwards  fell  upon  and  killed  the  plaintifT's  horse. 
The  2d  count  stated,  that  the  defendant,  knowing  the  plaintiS^'s  horse  to 
be  running  at  large  in  the  unenclosed  lands  of  the  county,  and  mali- 
ciously contriving  to  injure  the  plaintiff,  unlawfully  and  negligently  cut 
a  tree  in  the  county  and  set  it  on  fire ;  and  that  the  tree  afterwards,  in 
consequence  of  the  cutting  and  burning,  fell  upon  and  killed  the  plain- 
tiff's horse  (a). 

Held,  that  the  declaration  contained  no  cause  of  action. 

ERROR  to  the  Johnson  Circuit  Court. 

HoLMAN,  J. — Durham,  in  his  declaration  against  Mus- 
selman, charges  in  the  first  count  that  Musselman,  on  his 
unenclosed  land  in  Johnson  county,  cut  a  large  tree  so 
that  it  was  nearly  ready,  and  always  liable  to  fall,  and 
then  built  a  fire  around  it,  and  negligently  and  unlawfully 
left  it  burning,  and  always  liable  to  fall ;  which  tree  after- 
wards, on  the  same  day,  fell  upon  and  killed  the  mare  and 
colt  of  the  plaintifi:'.  In  the  second  count,  he  states 
[*97]  that  his  mare  and  colt  were  running  at  large  *in 
the  unenclosed  lands  in  Johnson  county,  and  that 

(a)  53  Ind.  527 ;  16  Id.  312-314;  23  Id.  69;  27  Id.  96. 

(112) 


NOVEMBER  TERM,  1827.  97 

Durham  v.  Musselman. 

the  defendant  knowing  the  same,  but  contriving  mali- 
cionslj  to  injure  the  plaintifl',  unlawfully,  carelessly,  and 
negligently,  cut  a  large  tree  in  Johnson  county,  and  then 
built  a  fire  around  said  tree,  and  left  the  same  always 
liable  to  fall ;  which  tree,  by  the  said  cutting  and  burn- 
ing, afterwards,  on  the  same  day,  fell  upon  and  killed  the 
said  mare  and  colt.  To  this  declaration  the  defendant 
demurred  and  had  judgment. 

This  case  seems  to  rest  in  some  measure  upon  the  pecu- 
liar customs  of  this  country.  It  is  well  known,  that 
horses  and  cattle  are  permitted  to  run  at  large  through 
the  country,  and  particularly  in  the  new  settlements,  in 
one  of  which  this  transaction  took  place ;  and  are  not 
considered  as  tresspassing  by  entering  the  unenclosed 
lands  of  any  person.  So  that  the  defendant  can  not  re- 
sist this  action,  on  the  ground  that  the  mare  and  colt  of 
the  plaintiff"  were  trespassing  on  his  lands  when  they 
were  killed.  Nor  can  the  defendant  sustain  his  defence, 
even  on  the  first  count  in  the  declaration,  on  his  supposed 
natural  right  of  doing  what  he  pleases  on  his  own  laud ; 
for  a  man  should  so  use  his  own  property  as  not  to  injure 
the  property  of  another.  But  this  principle  of  common 
justice  does  not  render  a  man  liable,  as  a  matter  of  course, 
for  every  injury  another  may  sustain  from  his  use  of  his 
own  property.  It  is  only  when  he  deviates,  either  by  in- 
tention or  neglect,  from  the  ordinary  use  of  his  property, 
that  he  can  be  considered  liable  for  an  injury  thereby 
done  to  another.  Even  then,  his  liability  depends  on  the 
nature  of  his  act,  and  the  probability  that  such  an  act 
would  occasion  an  injury  to  another.  If  the  act  was  un- 
lawful, as  laying  a  log  in  the  highway,  he  would  be  liable 
for  an  injury  done  thereby,  without  any  reference  to  the 
probability  that  it  would  occasion  that  particular  injury. 
But  when  the  act  is  lawful,  the  liability  of  the  actor,  for 
an  injury  occasioned  by  it,  depends,  in  the  first  place,  on 
the  question,  whether  the  injury  is  the  natural  or  proba- 
ble consequence  of  the  act,  or  is  merely  accidental.  If 
Vol.  II.— 8  (113) 


97-98       SUPREME  COURT  OF  IXDIAXA. 

Durham  v.  Musselman. 

the  injury  is  the  natural  or  probable  consequence  of  the 
act,  and  such  as  any  prudent  man  must  have  foreseen,  it 
is  but  reasonable  that  the  perpetrator  of  the  act,  should 
be  held  accountable  for  the  injurious  consequences.  As, 
in  the  case  of  the  man  baiting  his  traps  witii  flesh  so  near 

the  highway,  or  the  grounds  of  another,  that  dogs 
[*98]    passing  the  '^highway,  or  kept  in  another's  grounds, 

are  attracted  into  his  traps,  and  thereby  injured; 
he  is  liable  for  the  injury.  Townsend  v.Wathen,  9  East, 
277.  In  the  second  place,  when  the  injury  is  accidental, 
the  liability  of  the  actor  must  depend  on  the  degree  of 
probability  there  was,  that  such  an  event  would  be  pro- 
duced by  the  act. 

Testing  this  case,  as  it  stands  in  the  first  count,  by  these 
rules,  it  is  evident  that  the  cutting  or  burning  down  of  a 
tree,  on  a  man's  own  land,  whether  enclosed  or  otherwise, 
is  not  an  unlawful  act.  The  charge  in  the  declaration 
that  it  was  unlawfully  done,  amounts  to  nothing,  where 
there  are  no  circumstances  to  warrant  such  a  charge.  In 
removing  the  heavy  forests  with  which  our  lands  are  cov- 
ered, we  see  it  to  be  a  very  general  practice,  to  girdle  the 
trees,  and  leave  them  to  die  and  fall  according  to  the 
course  of  nature.  If  the  trees  so  girdled  fall  upon  the 
cattle  of  others,  running  at  large,  the  person  who  girdled 
the  trees  is  not  liable  for  the  injury.  Every  person  suffer- 
ing his  cattle  to  run  at  large  through  the  forest,  must  be 
considered  as  running  the  risk  of  their  being  killed  by 
the  trees  so  girdled.  Another  method  used  for  the  de- 
struction of  timber,  is  to  employ  fire -for  the  removing  of 
such  trees  as  are  susceptible  of  being  felled  by  burning. 
This  practice,  though  not  so  common  as  the  former,  and 
perhaps  more  dangerous,  is  by  no  means  unlawful.  The 
destruction  of  the  cattle  of  others,  is  not  the  natural  or 
probable  consequence  of  such  a  practice.  If  cattle  are 
thereby  destroyed,  it  can  only  be  considered  as  accidental; 
and  the  circumstances  of  the  case  would  determine  what 
degree  of  probabilitv  there  was  that  such  would  be  the 

(114) 


^^OVEMBEU  TERM,  1827.  98-99 

Durham  i'.  Musselman, 

consequence.  The  simple  act  of  leaving  a  tree  ou  tire, 
which  must  of  necessity  burn  down  in  a  short  time,  and 
which,  in  its  fall  killed  the  plaintiff's  mare  and  colt,  is 
not  such  an  act,  under  the  existing  state  of  things  in  this 
country,  as  would  render  the  actor  liable  to  the  injured 
person.  So  that  under  the  first  count  in  the  declaration, 
the  plaintiff  can  not  maintain  his  action. 

The  second  count  presents  the  case  a  little  differently. 
It  does  not  state  that  the  tree  was  on  the  lands  of  the 
defendant,  but  in  Johnson  county;  but  as  it  is  not  sug- 
gested in  the  declaration,  nor  pretended   in  argument, 

that  the  defendant  had  done  any  wrong  as  it  re- 
[*99]    spected  the  tree  itself,  or  was  infringing  the  *right 

of  any  person  by  molesting  the  tree,  this  differ- 
ence in  the  two  counts  can  make  no  difference  in  the  de- 
fendant's liability.  But  this  count  states  that  the  defend- 
ant, contriving  maliciously  to  injure  the  plaintiff,  cut  the 
tree  and  set  it  on  fire;  but  this  can  not  materially  alter 
the  case.  The  averment  of  malice  has  no  connection 
with  the  injury  of  which  the  plaintiff  complains.  Had 
the  injury  been  the  natural  or  probahle  consequence  of 
the  act,  a  malicious  design  might  have  been  connected 
with  it.  But  to  connect  a  malicious  design  to  injure, 
with  the  burning  of  a  tree  in  Johnson  county,  because 
the  defendant  knew  that  the  plaintiff"  had  a  mare  and 
colt  running  at  large  in  Johnson  county,  seems  to  be 
forced  and  unnatural.  We  can  not  have  a  definite  idea 
of  a  design  to  injure,  unconnected  with  some  degree  of 
probability,  that  the  means  made  use  of  would  effect  the 
design.  Although  the  plaintift''s  mare  and  colt  were  run- 
ning at  large  in  Johnson  county,  yet  the  probability  of 
injuring  either  of  thcni  by  burning  down  a  tree  in  that 
county,  is  so  very  remote,  that  we  can  not  connect  it  with 
the  idea  of  design  or  contrivance.  Many  thousands  of 
trees  might  have  been  left  to  burn  down  in  that  county, 
on  the  same  day,  Avithout  injuring  the  plaintiff's  mare  or 
colt.     In  order  to  have  ixlvcn  materiality  to  the  charge 

(115) 


99-100      SUPREME  COURT  OF  INDIAIS^A. 

Gilly  r.  Breekenridge. 

of  malice,  the  declaration  should  have  shown,  that  there 
was  some  degree  of  probability,  that  the  burning  down 
of  the  tree  would  have  done  the  plaintift"  an  injury;  as, 
that  the  tree  stood  near,  and  would  probably  fall  where 
the  defendant  knew  the  plaintitf's  mare  and  colt  were 
usually,  or  frequently  feeding,  passing,  or  standing;  and 
then  the  materiality  of  the  charge  of  malice  would  de- 
pend on  the  degree  of  probability.  Without  showing 
some  such  probability  of  doing  an  injury,  the  charge  of 
malice  amounts  to  nothing.  So  that  the  action  can  not 
be  supported  on  either  count  in  the  declaration. 

Per  Curiam  — The  judgment  is  affirmed  with  costs. 

Sweetser,  for  the  plaintiff. 

Wick,  for  the  defendant. 


[*100]  "^GiLLY  V.  Breckenridge. 

Attachment — Filing  Claims — Pleading. — Wlien  a  creditor  comes  in, 
during  the  pendency  of  an  attachment  commenced  by  another,  to  obtain 
a  judgment  under  the  statute,  his  claim  must  be  set  forth  with  the  same 
certainty  that,  in  any  other  action,  is  required  in  a  declaration. 

.  ERROR  to  the  Knox  Circuit  Court. 

Scott,  J. — Arthur  Patterson  brought  suit,  by  foreign 
attachment,  against  John  B.  Gilly,  and  proceeded  to  final 
judgment.  During  the  progress  of  the  suit,  and  at  the 
term  of  the  Court  at  which  final  judgment  was  rendered, 
James  D.  Breekenridge  filed  the  following  suggestion 
and  claim,  to  wit,  "James  D.  Breekenridge  suggests,  and 
gives  the  Court  now  here  to  understand  and  be  informed, 
that  he  is  one  of  the  creditors  of  the  said  John  B.  Gilly, 
the  defendant  in  attachment,  to  the  amount  and  for  the 
sum  of  4,214  dollars  and  78  cents;  and  he  prays  a  div- 
idend in  the  property  attached,  in  proportion  to  the 
amount  of  his  demand  or  claim,  first  deductinc:  all  Icffal 
costs  from  the  amount  which  the  property  attached  may 

(11.5) 


NOVEMBER  TERM,  1827.  100-101 

Gilly  V.  Breckenridge. 

bring,  according  to  the  statute  of  the  state  of  Indiana,  in 
such  case  made  and  provided.  June  23rd,  1826. — James 
D.  Breckenridge. '^  The  plaintiff  by  his  counsel  objected 
to  this  claim,  but  the  Court  overruled  the  objection.  A 
jury  was  impaneled,  and  there  was  a  verdict  for  the 
whole  amount  of  the  claim,  and  judgment  accordingly. 
To  reverse  that  judgment  is  the  object  of  the  present  writ 
of  error. 

It  is  essential  to  a  good  declaration,  in  all  the  forms  of 
action  known  to  the  common  law,  that  it  contain  a  good 
cause  of  action,  set  forth  with  such  certainty  of  persons, 
time,  place,  and  matter,  as  to  be  distinguishable  from  any 
other  demand  of  the  same  nature.  The  cause  of  action 
must  be  so  specially  described,  that  one  recovery  will  bar 
any  future  attempt  to  enforce  the  same  demand.  It  was 
decided  by  this  Court,  in  the  case  of  Bond  v.  Patterson,  1 
Blackf.  34,  that  this  certainty  is  as  indispensable  in  cases 
of  attachment  as  in  any  other  form  of  action.  In  that 
case,  the  decision  had  respect  particularly  to  the  descrip- 
tion of  the  demand  set  up  by  the  plaintilf;  but  the  doc- 
trine is  equally  applicable  to  one  who  comes  in  as 
[*101]  a  ^claiming  creditor,  after  the  writ  has  been  sued 
out  by  another;  no  reason  exists,why  the  rules  of 
law  should  be,  in  any  degree,  relaxed  in  his  favor ;  or  why 
he  should  be  excused  from  showing  his  claim  with  the 
same  descriptive  certainty  which  would,  in  any  other  form 
of  action,  be  required  in  a  declaration.  In  the  case  before 
us,  no  contract  is  set  out,  no  breach  assigned,  no  time, 
place,  or  consideration,  is  shown;  the  mere  suggestion 
that  the  claimant  is  07ie  of  the  creditors  of  Gilly,  to  the 
amount  of  4,21-1  dollars  and  70  cents,  is  all  the  claim  the 
record  shows.  Some  depositions,  and  a  long  account 
purporting  to  be  some  transactions  between  these  parties, 
are  sent  up  with  the  record;  but  as  these  documents  form 
no  part  of  the  record,  we  can  not  notice  them.  We  r.-: 
therefore  of  opinion  that,  for  the  vagueness  and  uncer- 
tainty of  the  claim,  the  objection  made  to  it  in  the  Qiv- 

■  (117) 


101-102   SUPREME  COURT  OF  INDIANA. 

Aborn  v.  Burnett  and  Another. 

fiuit  Court  ought  to  have  been  sustained,  and  that  the 
Court  erred  in  overruling  that  objection. 

Per  Curiam. — The  judgment  is  reversed  with  costs 

Judak,  for  the  plaintift". 

Dewey,  for  the  defendant. 


Aborn  v.  Burnett  and  Another. 

Vendor's  Lien— Deed  Intended  as  Mortgage — Admission. — A.  filed  a 
bill  in  chancery  against  B.  the  heir  and  C.  the  administrator  of  D. — stat- 
ing that  the  complainant  had  sold  and  conveyed  a  lot  of  ground  to  D. 
without  receiving  the  purchase-money,  and  that  D.  had  died  insolvent. 
Prayer  that  the  lot  might  be  sold  to  pay  the  purchase-money.  An  order 
of  publication  was  made  as  to  the  heir,  who  was  a  non-resident.  The 
administrator  filed  an  answer  and  cross-bill — stating  that  the  conveyance, 
though  absolute  on  its  face,  was  intended  as  a  mortgage  to  secure  the 
payment  of  a  debt  due  from  A.  to  D.,  and  praying  a  sale  of  the  lot  to  pay 
the  debt. 

Held,  1st,  that  there  could  be  no  decree  for  the  complainant  without  proof 
that  the  order  of  publication,  as  to  the  heir,  had  been  made.  2dly,  that 
parol  evidence  of  the  complainant's  admissions  as  to  the  deed's  being  in- 
tended to  be  a  mortgage,  should  be  received  with  great  caution;  and 
ought  not,  where  there  are  circumstances  raising  a  contrary  presumption, 
to  be  permitted  to  control  the  deed  («). 

ERROR  to  the  Floyd  Circuit  Court. 

Scott,  J. — Abbv  B.  Aborn  filed  her  bill  in  chancery  in 
the  FIojhI  Circuit  Court  against  Moses  Eastburn,  heir  at 
law,  and  Alexander  S.  Burnett,  administrator  of 
[*102]    John  Eastburn,  deceased,  ^stating   that,  in   the 
\  year  1818,  she  sold  and  conveyed  to  the  said  John 

Eastburn  a  certain  lot  in  the  town  of  New  Albany,  for 
the  sum  of  800  dollars;  that,  at  the  time  of  the  sale  and 
conversance  so  made,  she  received  no  part  of  the  purchase- 
money  for  the  said  lot;  but  that,  since  that  time,  she  has 
received  311  dollars  and  20  cents.  She  sets  out  the  death 
of  Eastburn,  alleges  his  estate  to  be  insolvent,  and  prays 

(a)  5  Blkf.  361  ;  19  Ind.  334;  22  Id.  59;  29  Id.  570. 

(118) 


NOVEMBER  TERM,  1827.  102-103 

Aborn  v.  Burnett  and  Another. 

a  sale  of  the  lot,  to  satisf}-  and  pay  the  amount  of  the 
purchase-money  remaining  due.  Burnett,  the  adminis- 
trator, in  his  answer  and  cross-bill,  alleges  that  the  con- 
veyance stated  by  the  complainant,  although  appearing 
on  its  face  to  be  an  absolute  transfer  of  the  property,  was, 
by  the  intent  and  agreement  of  the  parties,  to  stand  only 
as  a  security  for  the  payment  of  a  certain  debt,  which  he 
alleges  was  due  from  the  said  Aborn  to  the  said  East- 
burn  ;  and  that,  on  payment  of  that  debt,  the  contract 
was  to  be  rescinded,  or  the  lot  reconveyed  to  the  com- 
plainant. He  admits  the  insolvenc}^  of  Eastburn's  estate, 
but  resists  the  complainant's  claim  to  a  lien  on  the  prop- 
erty. He  charges  the  complainant  with  the  amount  re- 
ceived by  her,  and  claims  a  foreclosure  and  sale  of  the 
mortgaged  premises,  for  the  payment  of  that  debt.  There 
was  an  order  of  publication  with  respect  to  the  heir  at 
law,  who,  it  appears,  is  a  non-resident.  After  several  con- 
tinuances, the  Court,  without  any  further  notice  being 
taken  of  the  heir  at  law,  rendered  a  decree  in  favor  of 
Burnett,  the  administrator,  and  ordered  a  sale  of  the  lot 
in  conformity  to  the  prayer  of  his  cross-bill.  i 

This  was  wrong.  The  Court  ought  to  have  been  satis- 
fied that  the  publication  had  been  made,  agreeably  to 
their  order,  prior  to  the  rendition  of  a  decree  which  would 
affect  the  interest  of  the  heir  at  law.  This  circumstance 
might  be  less  important,  if  the  decree  were  othenvi;je 
clear  of  objection.  The  decree  is  founded  on  parol  evi- 
dence of  the  declarations  of  the  complainant,  in  cen'ain 
conversations  with  the  witnesses,  or  in  their  hearing,  un- 
aided by  any  circumstance  of  fraud,  mistake,  or  accident ; 
a  species  of  evidence  extremely  liable  to  be  misunderstood 
or  perverted,  very  difficult  to  be  assailed,  and  at  the  same 
time  so  evanescent,  that  great  caution  ought  to  be  used 
in  admitting  it  to  control  an  absolute  deed.  The  cases 
where  Courts  have  admitted  parol  evidence  to  interfere 
with  written  contracts,  have  generally -been  where 
[*103]    there  existed  some  equity  ^dehors  the  deed.  There 

(119) 


103  SUPREME  COURT  OF  IN^DIANA. 


Holford  V.  The  State. 


is  nothing  in  this  record  which  goes  to  show  any  equita- 
ble circumstances  dehors  the  deed,  which  would  open 
the  door  to  the  admission  of  parol  evidence.  On  the 
contrary,  the  case,  as  exhibited  in  the  record,  affords 
strong  presumption  against  such  evidence.  We  have  not 
the  deed  before  us,  but  it  is  stated  to  have  been  made  in 
the  year  1818;  and  the  defendant  alleges,  that  it  was 
made  to  secure  the  payment  of  a  debt  then  existing. 
When  we  examine  the  demand  set  up  by  the  administra- 
tors, we  lind  the -first  item  of  the  account  dated  on  the 
3d  of  December  of  that  year,  and  the  account,  at  the 
close  of  the  year,  so  small  as  to  render  it  extremely  im- 
probable that  either  party  would  have  thought  of  a  mort- 
gage to  secure  its  discharge. 

Per  Curiam. — The  decree  is  reversed  with  costs.     Cause 
remanded,  &c. 

Nelson,  for  the  plaintiff. 

Payne,  for  the  defendant.  j 


Holford  v.  The  State. 


Keceiving  Stolen  Goods— Venue — Time. — Indictment  for  receiving  sto- 
len goods  knowing  them  to  be  stolen.  i7eW,  that  the  time  and  place, 
when  and  where  the  goods  were  stolen,  need  not  be  stated  in  the  indict- 
ment, nor  proved  at  the  trial  (a). 

ERROR  to  the  Dearborn  Circuit  Court. 

Scott,  J.-r-Holford  was  indicted  in  the  Dearborn  Cir- 
cuit Court  for  receiving  stolen  goods  ;  on  which  indict- 
ment there  was  a  verdict  of  conviction,  and  judgment. 
Tlie  errors  assigned  are,  that  the  indictment  does  not  al- 
lege any  time  and  place  when  and  where  the  goods  were 
stolen  ;  and  that,  on  the  trial,  there  was  no  evidence  to 
prove  that  the  said  goods  were  stolen  within  the  state  of 
Indiana, 

•      (a)   49  Ind.  248  :  33  Id.  439. 

(120)    ■ 


NOVEMBER  TERM,  1827.  103-104 


Holford  I'.  The  State. 


To  test  the  validity  of  the  errors  assigned,  it  is  neces- 
sary only  to  revert   to  the  statute  creating  the  offence. 
Tlie  words  of  the  statute  are  as  follows,  to  wit,  "  every 
person  who  shall  buy  or  receive  stolen  goods,  knowing 
the  same  to  be  stolen,  shall  upon  conviction  be  punished," 
&c.     R.  C.  1824,  p.  140.     In  an  indictment,  every 
[*104]  material  fact  ought  to  be  alleged  with  *the  cer- 
tainty of  time  and  place  ;  and  every  fact  is  mate- 
rial, which  is  necessary  to  constitute  the  crime  charged 
in  the  indictment.     That  the  goods  mentioned  were  sto- 
len goods,  and  that  the  defendant  received  them,  know- 
ing them  to  be  such,  were  material  facts  to  be  alleged  and 
proved;  because  they  are  the  facts  which  constitute  the 
offence;  but  the  time  and  place  of  stealing  the  goods  need 
not  be  alleged  ;  because  the  defendant  is  not  charged  with 
the  larceny.     If  it  were  necessary,  by  averment  and  proof, 
to  connect  the  time  and  place  of  the  stealing  with  the 
act  of  receiving,  it  would,  for  the  same  reason,  be  neces- 
sary also  to    connect  the    same  circumstances  with    his 
knowledge  of  the  fact,  that  the  goods  were  stolen.     If 
such  were  the  law,  no  offender  could  be  convicted,  under 
this  statute,  without  proof,  not  only  of  his  having  received 
stolen  goods,  knowing  them  to  be  such,  but  also  of  his 
knowledge  of  the  precise  time  and  place  of  the  original 
larceny.     And  yet  it  is  easy  to  conceive  a  case,  in  which 
a  man  might  be  guilty  of  the  offence  of  knowingly  re- 
ceiving stolen  goods,  without  either  the  offender,  or  the 
witnesses,  having  any  knowledge  of  the  time  and  place 
of  the  felonious  taking.     If  these  positions  be  correct,  it 
.clearly  follows  that  any  evidence  which  might  have  arisen 
in  this  case,  going  to  show  the  time  and  place  of  the  orig- 
inal larceny,  was  unnecessary  to  support  the  charge  in 
the  indictment. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Howard,  for  the  plaintiff". 
Wlvfcnrab^  for  the  state. 

(121) 


104-105    SUPREME  COURT  OF  IXDIAN^A. 


Stegars  v.  The  State. 


Stegaks  v.  The  State. 

Becognizance — Surrender  of  Principal — Eelease. — The  surety  in  a 
recognizance  before  a  justice  of  the  peace,  for  the  principal's  appearance 
at  the  Circuit  Court  to  answer  a  criminal  charge,  can  not  discharge  liim- 
self  by  a  surrender  of  his  principal  to  the  justice  (a). 

Same — Practice. — The  surrender  in  such  cases,  accompanied  by  a  certified 
copy  of  the  recognizance,  may  be  made  to  the  sheriff. 

ERROR  to  the  Rush  Circuit  Court. 

HoLMAN,  J. — Scire  facias,  on  a  recognizance  stating 
that  John  Moore  and  William  Stegars,  on  the  8th 
[*105]  of  February,  1827,  *appeared  before  Daniel  Lan- 
man,  a  justice  of  the  peace,  and  acknowledged 
themselves  to  owe  to  the  state  of  Indiana  200  dollars 
each;  to  be  levied,  &c. ;  conditioned  that  said  Moore 
should  appear  at  the  next  Circuit  Court  and  answer  to  a 
charge  of  perjury;  that  Moore  failed  to  appear,  and  that 
Stegars,  when  required,  failed  to  bring  in  his  body  in 
discharge  of  his  recognizance;  that  thereupon  judgment 
was  entered  up  against  Stegars,  and  a  scire  facias  awarded 
against  him  to  show  cause  why  the  state  should  not  have 
execution  on  said  judgment.  The  scire  facias  was  re- 
turned "  not  found."  Afterwards  the  defendant  appeared 
by  his  counsel,  obtained  oyer  of  the  recognizance  and 
scire  facias,  and  pleaded  three  several  pleas  in  bar. 
These  pleas  are  drawn  out  to  a  considerable  length,  but 
are  in  substance  as  follows : 

First,  that  said  Moore  being  surrendered  by  the  de- 
fendant as  his  bail  to  a  proper  tribunal,  and  being  in  the 
custody  of  a  proper  officer,  to  wit,  a  constable,  by  virtue 
of  said  surrender,  was  brought  before  an  associate  judge 
in  obedience  to  a  writ  of  habeas  corpus,  by  the  constable, 
who  made  his  return  "without  any  papers  to  show  why 
he  was  detained  in  the  custody  of  the  said  Lanman :"  and 
that  the  said  judge  ordered  the   said  Moore   to    be  dis- 

((()  52  Ind.  IGS. 

(122) 


NOVEMBER  TERM,  1827.  105-lOG 

Stegars  v.  The  State. 

charged,  who  thereupon  was  discharged  accordingly; 
averring  that  the  said  Moore  so  discharged,  and  the  said 
Moore  named  in  said  recognizance,  were  the  same  per- 
son, and  tliat  there  was  no  other  charge  against  him  but 
the  charge  in  the  recognizance.  Secondly,  that  after  en- 
tering into  tlie  recognizance,  and  before  the  recognizance 
was  returned  into  court,  he  retook  the  said  Moore  as  his 
bail,  and  afterwards,  on  the  same  day  of  the  date  of  the 
recognizance,  delivered  him  to  the  said  justice,  and  into 
the  custody  of  the  acting  constable  of  said  justice;  and 
that  said  Moore  was  then  and  there  received  by  the  said 
justice  and  constable  in  discharge  of  said  recognizance, 
and  to  answer  to  the  state  for  the  said  offence.  Thirdly, 
that  on  the  —  day  of  — ,  1827,  he  surrendered  up  the 
said  Moore  to  the  said  justice,  at  his  office,  who  had  full 
authority  to  receive  said  Moore,  and  did  receive  him  and 
commit  him  to  the  custody  of  a  constable;  averring  that 
the  surrender  was  made  by  the  defendant,  as  the  bail  of 

the  said  Moore,  in  discharge  of  his  recognizance. 
[^106]        *The  attorney  for  the  state  demurred  to  these 

pleas;  the  demurrer  was  sustained  by  the  Court, 
and  execution  awarded. 

The  plaintiff  in  error  contends  here,  that  he  had  a  right 
to  surrender  his  principal  to  the  justice  of  the  peace  who 
took  the  recognizance,  at  any  time  before  the  recogni- 
zance was  returned  into  Court.  If  he  is  correct  in  this 
position,  and  his  right  to  make  the  surrender  does  not 
exist  after  the  recognizance  is  returned  into  Court,  his 
first  and  third  pleas  must  fail;  because  they  do  not  show 
the  time  when  the  surrender  was  made,  nor  that  it  was 
made  while  the  recognizance  remained  with  the  justice 
of  the  peace ;  and  more  especially  the  first,  because  it 
does  not  state  that  the  surrender  was  made  to  the  justice 
of  the  peace,  but  to  a  2^roper  tribunal.  The  second  is 
therefore  the  onl}^  plea  that  requires  our  attention.  This 
plea  avers  a  surrender  of  the  principal  to  tlie  justice  of 
the  peace,  on  the  dav  the  recognizance  was  taken,  and 

(123)  ^ 


106-107     SUPREME  COURT  OF  INDIANA. 

Stegars  v.  The  State. 

before  it  was  returned  into  Court.  It  becomes  tlierefore 
necessary  to  inquire  wliether  the  bail  had  a  riglit  to  make 
such  a  surrender.  That  he  would  have  this  right  it"  we 
were  governed  by  the  English  practice,  seems  to  be  con- 
ceded; but  such  a  right  does  not  seem  to  be  consistent 
with  our  system  of  jurisprudence,  nor  does  it  appear  to 
have  been  contemplated  by  our  legislature.  As  a  gen- 
eral rule  it  would  be  extremely  inconvenient  and  dan- 
gerous. A  justice  of  the  peace  in  this  state,  is  not  con- 
sidered as  having  a  ministerial  officer  at  all  times  attend- 
ing upon  him;  and  in  the  absence  of  his  officer,  he  is 
unprepared  to  detain  a  prisoner,  or  to  conduct  him  to 
prison.  So  that,  independently  of  any  act  of  the  legisla- 
ture, he  would  be  an  improper  officer  to  receive  the  pris- 
oner at  an}'  time  the  bail  might  think  proper  to  surrender 
him.  But  the  legislature  has  made  ample  provision,  in 
all  such  cases,  by  authorizing  sureties  in  criminal  cases  to 
surrender  their  principals  to  the  sherift',  with  a  certitied 
copy  of  the  recognizance.  R.  C.  1824,  p.  379  (1).  This 
seems  to  be  the  only  mode  contemplated  by  the  legisla- 
ture, and  the  only,  mode  that  could  be  safely  and  conve- 
niently pursued  in  this  country.  We  therefore  think 
that  the  right  of  surrendering  the  principal  to  the  justice 
of  the  peace,  even  before  the  removal  of  the  recogni- 
zance, does  not  exist. 

But  this  plea  further  states,  that  the  justice  of  the 

peace  received  the  principal  in  discharge  of  the 
[*107]    recognizance,  and  *committed  him  to  the  custody 

of  the  constable.  If  such  a  surrender  was  unau- 
thorized by  law,  and  the  bail  had  no  right  to  make  it, 
the  act  of  the  justice  of  the  peace  could  not  affect  the 
case.  The  act  of  assembly  authorizing  the  justice  of  the 
peace  to  take  the  recognizance,  R.  C.  1824,  p.  236,  requires 
him  to  return  the  recognizance  into  the  Circuit  Court,  or 
to  transmit  it  to  the  prosecuting  attorney,  or  clerk,  at  as 
early  a  time  as  is  convenient  before  the  sitting  ot  the 
Court  (2);  and  does  not  contemplate  his  doing  any  other 

(124) 


NOVEMBER  TERM,  1827.  107-108 

Holt  V.  Alloway. 

act,  relative  to  the  prisoner,  after  taking  the  recognizance, 
besides  making  such  return.  There  however  can  be  no 
doubt  but  that  while  all  the  parties  are  yet  before  him, 
he  might,  at  the  request  of  the  bail,  cancel  the  recogniz- 
ance, and  proceed  in  the  case  as  if  no  recognizance  had 
been  taken.  But  after  he  has  disposed  of  the  case,  and 
dismissed  the  parties  from  before  him,  the  only  legal  act 
that  remains  for  him  to  do  in  the  case  is,  to  return  the 
recognizance  into  Court.  And  the  only  way  that  the  bail 
could  then  exonerate  himself  from  his  responsibility  would 
be  to  surrender  the  principal  to  the  sheriff.  Had  this 
method  been  pursued  in  this  case,  it  is  not  probable  that 
the  prisoner  would  have  been  discharged,  as  is  stated  in 
the  first  plea;  the  officer  having  him  in  custody  would 
have  been  able  to  show  a  good  cause  for  detaining  him. 
The  result  of  the  case  before  the  associate  judge,  clearly 
shows  the  impolicy  of  pursuing  any  other  method  of  sur- 
render, than  that  prescribed  by  the  act  of  assembly. 

There  are  some  other  questions  raised  in  this  case,  but 
they  are  without  weight.  There  is  nothing  in  the  objec- 
tion, that  the  recognizance  was  not  signed  by  the  recog- 
nizors. See  1  Chitt.  C.  L.  104.  And  the  pretext  for  the 
objection,  that  the  scire  facias  was  not  executed,  was  at 
an  end  as  soon  as  the  defendant  appeared  to  the  action. 

Per  Curiam. — The  judgment  is  affirmed  with  costs» 

Rariden  and  Sweetser,  for  the  plaintiff. 

Whitcomb,  for  the  state. 

(1)  R  C.  1831,  p.  197,  sec.  92,  accord. 

(2)  R  C.  1831,  p.  293,  accord. 


[*108]  Holt  v.  Alloway. 

Foreign  Judgment — Res  Adjudicata. — The  judgment  of  a  Court  of  rec- 
ord of  competent  jurisdiction  in  one  state,  fairly  obtained,  where  the  de- 
fendant had  personal  notice  of  the  suit,  is  conclusive  between  the  parties 

(125) 


108  SUPREME  COURT  OF  IKDIAXA. 

Holt  V.  Alloway. 

in  an  action  on  it  in  any  other  state ;  and  the  circumstance,  that  tlie 
juflgmcnt  is  against  the  defendant  as  special  bail,  makes  no  difference. 

Sajie — Defence, — To  an  action  on  the  judgment  of  a  Court  in  another 
state,  the  defendant  may  plead  that  the  judgment  was  obtained  by  fraud, 
or  that  the  court  had  no  jurisdiction  of  the  person  or  of  the  subject-mat- 
ter. 

Same — Juiijs  iiction. — A  judgment  obtained  conformably  to  the  laws  of 
the  state  against  a  person  resident  therein,  without  personal  notice  of  the 
suit,  is  not  conclusive  against  him  in  an  action  on  it  in  another  state; 
nor  is  such  judgment  absolutely  void  as  the  judgment  of  a  court  having 
no  jurisdiction.  The  judgment  in  such  case,  stands  on  the  same  footing 
with  a  foi-eign  judgment ;  and  if  it  be  against  special  bail,  he  may,  in  an 
action  on  it  in  another  state,  plead  that  no  ca.  sa.  had  issued  against  his 
principal  («). 

ERROR  to  the  Bartholomew  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  debt,  founded 
on  the  judgment  of  a  Circuit  Court  of  the  state  of  Xen- 
tucky.  The  judgment  is  declared  on  as  a  matter  of  rec- 
ord, with  a  reference  by  the  prout  patet  per  recordum.  The 
defendant  pleaded,  inter  alia,  that  the  judgment,  if  any, 
had  been  obtained  against  him  on  a  recognizance  of  spe- 
cial bail  for  W.  Alloway,  without  any  notice  having  been 
served  on  the  defendant;  and  without  any  capias  ad  sat- 
isfaciendum having  been  issued  against  the  principal. 
There  was  a  general  demurrer  to  the  plea,  and  judgment 
for  the  defendant. 

This  plea,  though  not  technically  drawn,  may  be  con- 
sidered as  averring,  in  substance,  that  the  defendant  had 
no  personal  notice  of  the  original  suit;  and  the  plaintiiF 
contends,  tliat,  let  the  law  be  as  it  may  in  otdinary  cases, 
as  this  was  an  action  against  special  bail,  no  personal  no- 
tice was  necessary.  For  this  he  cites  Delano  v.  Jopling, 
1  Littell,  417.  The  opposite  doctrine,  however,  is  laid 
down  \\\  Robinson  Y,  The  Executors  of  Ward,  8  Johns.  R. 
86,  relied  on  by  the  defendant.  In  the  latter  case  it  is 
decided,  that  the  circumstance  of  the  judgment  having 
been  obtained  against  the  defendant  as  bail,  should  make 
no  difference;  and  our  opinion  is  in  accordance  with  this 

(a)  38  Ind.  429 ;  9  Id.  212  ;  2  Id.  548  ;  4  Blkf.  429. 

(126) 


KOVEMBER  TERM,  1827.  108-109 

Holt  r.  Alloway. 

decision.  The  defence  of  bail  may  be  as  valid  and  im- 
portant as  that  of  a  principal  and  Avhatever  op- 
[*109]  portunity  of  making  it  may  *be  claimed  for  the 
one,  may  be  also  for  the  other.  There  being, 
therefore,  nothing  peculiar  in  this  case  to  take  it  out  of 
the  general  doctrine  applicable  to  actions  on  the  judg- 
ments of  other  states,  it  becomes  necessary  to  examine 
what  that  doctrine  is. 

By  the  act  of  congress  of  1790,  passed  in  pursuance  of 
a  provision  in  the  constitution  of  the  United  Scates,  the 
judicial  proceedings  of  each  state,  shall  have  the  same 
faith  and  credit  in  the  other  states,  that  they  have  in  the 
state  whence  they  are  taken.  According  to  this  act,  we 
consider  that  the  judgment  of  a  Court  of  record  of  com- 
petent jurisdiction  in  one  state,  fairly  obtained,  where  the 
defendant  had  personal  notice  of  the  action,  is  conclusive 
between  the  parties  in  any  other  state  in  which  an  action 
may  be  brought  on  it.  In  such  a  case,  nil  debet  can  not 
be  pleaded,  because  that  w«uld  lead  to  a  re-examination 
of  the  merits  of  a  cause,  presumed  to  have  been  already 
fairly  and  fully  tried;  there,  the  record  being  conclusive, 
'nul  (iel  record  is  the  only  general  plea.  31ills  v.  Duryee,  7 
Cranch.  481.  But  if  the  Court  rendering  the  judgment, 
have  no  jurisdiction  of  the  parties,  or  of  the  subject-mat- 
ter; or  if  the  judgment  be  obtained  by  fraud;  we  are  of 
opinion  that  the  defendant  is  not  to  be  confined  to  the 
single  plea  of  nul  tiel  record,  should  an  action  be  brought 
against  him  in  another  state  on  such  a  judgment.  In 
these  cases  he  must  be  permitted  to  plead  the  fraud,  or 
the  want  of  jurisdiction  of  the  person,  or  of  the  cause,  in 
bar  of  the  suit.  The  common  principles  of  justice  seem 
to  demand,  that  such  should  be  the  construction  of  the 
act  of  congress,  and  there  is  good  authority  for  saying, 
that  such  a  construction  is  in  accordance  with  the  princi- 
ples of  law.  Bisscll  v.  Briggs,  9  Mass.  462 ;  Borden  v. 
Fitch,  15  Johns.  R.  121 ;  Andrews  v.  Ifontgomery,  19  Johho, 
R.  162  (1). 

(127) 


109-110    SUPREME  COURT  OF  INDIANA. 

Holt  t'.  Alloway. 

The  cause  under  consideration  does  not  belong  to  either 
of  those  classes  of  cases.  On  the  one  hand,  it  is  a  case  to 
which,  for  the  want  of  personal  notice,  the  act  of  congress 
giving  to  the  judgment  of  one  state,  when  sued  upon  in 
another,  the  same  conclusive  effect  as  it  has  where  ren- 
dered, does  not  properl}^  f^pply*  That  act  is  based  upon 
the  principle,  that  the  merits  of  a  cause  once  fairly  and^ 
fully  tried  and  determined  in   one  state,  should  not  be 

subject  to  the  subsequent  investigations  and  deci- 
[*110]    sions  of  the  Courts  of  other  states;  but  a  *judg- 

ment  rendered,  like  the  one  in  question,  in  the 
absence  of  the  defendant,  and  without  any  personal  no- 
tice to  him  of  the  suit,  can  not  be  said  to  have  been  thus 
fairly  obtained,  and,  consequently,  does  not  come  within 
the  principle  of  the  act  of  congress.  On  the  other  hand, 
although  the  defendant  liad  no  personal  notice  of  the 
original  suit,  yet,  as  it  does  not  appear  but  that  he  was  a 
resident  of  the  state  of  Kentucky  when  the  action  was 
commenced,  and  that  the  judgment  was  recovered  in  con- 
formity with  the  laws  of  that  state,  we  would  not,  it  is 
conceived,  be  warranted  in  determining  that  the  Court 
had  no  jurisdiction  of  the  defendant,  and  that  the  judg- 
ment is  a  nullity.  We  are  of  opinion,  therefore,  that  ac- 
cording to  the  facts  on  the  record,  the  judgment  in  this 
case  must  be  viewed,  not  as  conclusive,  for  the  want  of 
personal  notice;  not  as  absolutely  void,  since  the  defend- 
ant must  be  presumed  a  resident  of  Kentucky  when  the 
suit  was  commenced,  and  amenable  to  its  laws;  but  we 
must  consider  it  as  a  foreign  judgment,  and  j^rima  facie 
evidence  of  the  debt.  It  is  yer  se  a  cause  of  action,  and 
may  be  declared  on,  as  in  the  present  case,  without  set- 
ting forth  the  original  demand.  Its  justice,  however,  is 
subject  to  be  impeached ;  and  it  maybe  shown  to  have 
been  unduly  or  irregularly  obtained. 

The  defendant  has  here  undertaken  to  impeach  the 
justice  of  the  judgment  by  showing  in  his  plea,  that  it 
was  rendered  against  him  on  a  recognizance  of  special 

(128) 


NOVEMBER  TERM,  1827.  .lO-lli 


Holt  V.  AUowav. 


bail;  that  he  had  no  personal  notice  of  the  suit;  and  that 
no  capias  ad  satisfaciendum  had  ever  issued  ao"ainst  the 
principal  If  these  facts  be  true,  and  the  demurrer  ad- 
mits them  to  be  so,  the  plaintiff  had  no  right  to  recover. 
No  capias  ad  satisfaciendum  having  issued  against  the 
principal,  the  bail  coukl  have  pleaded  that  fact  in  bar  of 
the  original  action,  if  he  had  had  an  opportunity  to  do 
so.  Such  a  plea,  it  is  true,  would  have-  been  too  late,  in 
a  suit  like  the  present,  had  this  been  a  domestic  judg- 
ment of  record,  or  entitled,  under  the  act  of  congress,  to 
the  conclusive  effect  of  such  a  judgment.  That  not  be- 
ing the  case,  however,  as  appears  by  the  record,  but  the 
judgment  having  the  character  and  validity  only  of  a 
foreign  judgment,  the  justice  of  which  might  be  im- 
peached, the  want  of  a  capias  ad  satisfaciendum  showing- 
it  to  be  unjust  and  that  it  had  been  unduly  obtained,  was 

a  bar  to  the  action. 
[*111]  *There  is  another  point  in  this  cause  which  it 
may  be  proper  to  mention.  The  declaration 
treats  the  judgment  as  conclusive  under  the  act  of  con- 
gress; and  the  question  suggested  is,  whether  the  defend- 
ant for  that  reason  was  bound,  in  pleading,  to  consider  it 
in  any  other  light.  If  he  was  not,  the  plea  of  a  want  of 
personal  notice  was  of  itself  sufficient.  This  subject, 
however,  need  not  be  examined,  for,  assuming  that  the 
judgment,  though  not  so  described,  may  be  considered  as 
a  foreign  one,  the  defendant  has  even  in  that  case,  as  we 
have  already  observed,  made  out  a  good  defence. 

Fer  Curiam. — The  judgment  is  affirmed  with  costs. 

Wick,  for  the  plaintiff". 

Sweetser,  for  the  defendant. 

(1)^  Vide  note  (1)  to  Cok  v.  DriskeU,  Vol.  1,  of  these  Eep.  16.  Chancel- 
lor Kent,  after  referring  to  mo.st  of  the  authorities  on  this  subject,  says: 
The  doctrine  in  Milh  v.  Duryee  [7  Cranch,  431,]  is  to  be  taken  with  the 
qualification,  that  in  all  instances  the  jurisdiction  of  the  Court  rendering 
the  judgment  may  be  inquired  into,  and  the  plea  of  nil  debet  will  allow  the 
defendant  to  show  that  the  Court  had  no  jurisdiction  over  his  per.son.  It  is 
only  when  the  jurisdiction  of  the  Court  in  another  state  is  not  impeached, 
either  as  to  tlie  subject-matter  or  the  person,  that  the  record  of  the  judg- 

VOL.    II.— 9  (129) 


111-112   SUPREME  COURT  OF  mDIA^^A. 


Holt  I'.  Allowav, 


nient  is  entitled  to  full  faith  and  credit ;  and  if  the  suit  in  another  state  was 
commenced  by  the  attachment  of  property,  the  defendant  may  plead  in  bar 
tiiat  no  process  was  served  on  him,  and  that  he  never  appeared  either  in 
person  or  by  attorney.  Starbuck  v.  Murray,  5  Wend.  148.  A  special  plea 
in  bar  of  a  suit  on  judgment  in  another  state  to  be  valid,  must  deny,  b\ 
j)Ositive  averment.s,  every  fact  which  would  go  to  show  that  the  Court  ii> 
another  state  had  jurisdiction  of  the  person,  or  of  the  subject-matter. 
Harrod  v.  Barretto,  1  Hall's  N.  Y.  Kep.  165  ;  1  Kent's  Comm.  2d  ed.  pft 
260,  261. 

The  most  important  cases  on  the  subject,  not  cited  in  the  note  to  Cole  v. 
Driskell,  are  T/iurber  v.  Blackbourne,  1  N.  H.  Kep.  242 ;  Spencer  v.  Brockivay, 
1  Ohio  Rep.  259 ;  Aldrich  v.  Kinney,  4.  Conn.  Rep.  380 ;  Benton  v.  Biirgot, 
10  Serg.  &Rawle,  240;  Hall  v.  Wi'lliamg,  6  Pick.  232;  Netvell  v.  Neuion,  10 
Pick.  470,  472 ;  Harrod  v.  Borreito,  1  Hall,  155  ;  Clarke's  Admr.  v.  Day,  2 
Leigh,  172;  Starbuck  v.  Murray,  5  Wend.  148;  Shwmvayv.  StUlman,  6  Wend. 
447'. 

The  case  of  Shumway  v.  Stilhnan,  supra,  had  been  previously  before  the 
Court.  It  was  instituted  in  New  York  on  a  judgment  obtained  in  Massa 
chusetts.  The  plea  in  the  first  instance  was,  that  at  the  time  when  the  suit 
was  commenced,  and  from  that  time  till  the  rendition  of  the  judgiaent,  the 
defendant  resided  in  New  York.  This  plea  not  showing  but  that  the  de- 
fendant had  been  served  with  process  or  had  appeared  to  the  action,  waa 
held  on  demurrer  to  be  insufficient.  4  Cowen,  292.  The  defendant,  in  the 
second  instance,  pleaded,  that  at  the  time  of  the  commencement  of  the  suit 
in  which  the  judgment  was  obtained,  and  when  the  judgment  was  rendered, 
and  during  the  intervening  time,  he  was  residing  at  Schenectady,  in  New 
York;  that  he  was  not  an  inhabitant  of  Massachusetts  ;  that  during  all  the 
said  time  he  was  not  in  Massachusetts ;  was  not  amenable  or  subject 
[■■112]  to  the  jurisdiction  of  the  Court  in  which  the  •■'judgment  was  render- 
ed, was  not  arrested  or  personally  served  with  process  in  the  said  suit 
in  Massachusetts  and  had  not  any  legal  notice  of  such  suit.  The  plaintiff 
replied,  that  the  defendant  had  had  notice  of  the  suit,  and  had  by  an  attor- 
ney appeared  to  the  same.  There  was  a  verdict  for  the  plaintiff  subject  to 
the  opinion  of  the  Court  as  to  the  law.  The  Court  said  that  the  plea  wa.s 
good.  They  said  also,  that  the  judgment  of  a  Court  of  general  jurisdiction 
in  any  state  of  the  Union,  is  equally  conclusive  upon  the  parties  in  all  the 
other  states,  as  in  the  state  which  it  was  rendered  ;  but  that  this  is  subject 
to  two  qualifications:  1.  If  it  appear  by  the  record  that  the  defendant 
was  not  served  with  process  and  did  not  appear  in  person  or  by  attorney, 
such  judgment  is  void  ;  2.  If  it  appear  by  the  record  the  defendant  ap- 
peared by  attorney,  the  defendant  may  disprove  the  authority  of  such  at- 
torney to  appear  for  iiim.     6  Wend.  447. 

If  the  record  state  that  the  defendant  appeared  in  person,  it  has  been, 
made  a  question  whether  he  is  not  estopped  to  deny  such  appearance.  In 
Massachusetts  the  CoHrt  says:  If  it  appeared  by  the  record  tliat  the  defend- 
ant had  notice  of  the  suit,  or  that  he  appeared  in  defence,  we  are  inclined 
to  think  that  it  could  not  be  gainsaid  ;  for  as  we  are  bound  to  give  a  full 
faith  and  credit  to  the  "record,  the  fact*  stated  in  it  must  be  taken  to  be 
true,  judicially,  and  if  they  should  be  untrue  by  reason  of  mistake  or 
otherwise,  the  aggrieved  party  must  resort  to  the  authorities  where  the 
judgment  was  rendered  for  redress,  for  he  could  not  be  allowed  to  contra- 
dict tlip  record  by  a  plea  and  by  an  issue  to  the  country  thereon.  But  if 
the  record  does  not  show  any  service  of  process,  or  any  appearance  in  the 
suit,  we  think  he  may  be  allowed  to  avoid  the  effect  of  the  judgment  here, 
by  showing  that  he  was  not  within  the  jurisdiction  of  the  Court  which  ren- 
dered it,  for  it  is  manifestly  against  first  principles,  that  a  man  should  be 
condemned,  either  criminally  or  civilly,  without  an  opportunity  to  be  heard 
in  his  defence.      Hall  v.   ]\'illi(iiiis,  supra. 

(130) 


NOVEMBER  TERM,  1827.  112-113 


Cupps  t'.  Irvin. 


It  is  decided  in  New  Yoi'k,  that  the  defendant  may  deny  a  statement  in 
the  record  of  his  personal  appearance.  After  citing  Aldrich  v.  Kinney,  4 
Conn.  Eep.  380,  to  show  that  the  defendant  is  not  estopped  by  the  record  to 
deny  his  appearance  by  attorney,  tlie  judge,  in  delivering  the  opinion  of  the 
Court,  says  :  If  the  allegation  in  the  record  of  an  appearance  by  an  attor- 
ney is  examinable  into,  in  action  on  the  judgment,  and  may  be  disproved,  I 
can  not  see  why  the  allegation  of  an  appearance  of  the  party  in  person  is 
not  in  like  manner  questionable.     Starbuck  v.  Murray,  supra. 


Cupps  V.  Irvin. 


Equitable  Title — Injunction. — A.,  holding  a  land-office  certificate  for  a 
tract  of  land,  executed  a  title-bond  to  B.  for  a  conveyance  at  a  future 
time  of  part  of  the  land,  and  put  him  in  possession.  A.,  afterwards,  sold 
and  assigned  the  certificate  to  C,  with  notice  of  B.'s  equity.  D.,  the  as. 
signee  of  B.,  having  reason  to  fear  that  C.  would  disturb  his  possession, 
and  sell  to  a  purchaser  without  notice,  filed  a  bill  in  chancery  to  enjoin 
him  from  doing  so,  and  obtained  a  decree  accordingly  (a) . 

APPEAL  from  the  Lawrence  Circuit  Court. 

Blackford,  J. — This  is  a  case  in  chancery.  The  matC' 
rial  facts  are  as  follows: — Manson  had  a  land-office  cer- 
tificate for  a  quarter  section  of  land.  The  dato 
[*113]  of  the  entry,  or  the  amount  *paid  is  not  stated. 
He  sold  30  acres  of  the  land  to  Freeman,  and  gav(3 
him  his  bond  for  the  making  of  a  good  title  in  the  year 
1829.  Freeman  had  possession  of  the  land  so  purchased, 
with  the  consent  of  Manson,  After  the  execution  of  the 
title-bond,  Manson  sold  and  assigned  the  certificate  to 
Irvin,  the  defendant,  without  any  reservation  as  to  Free- 
man's claim,  informing  the  purchaser,  that  that  claim 
was  conditionally  assigned  to  him,  Manson,  and  that  he. 
intended  to  discharge  the  land  of  it.  Cupps,  the  com- 
plainant, is  the  assignee  of  Freeman,  and  he  has  reason 
to  fear  that  Irvin  will  disturb  his  possession,  and  also  sell 
and  assign  the  certificate  without  notice  to  the  purchaser 
of  the  complainant's  claim.  The  bill  prays  that  the  de- 
fendant be  decreed  to  execute  an  acknowledgment  of  the 

(a)   18  Ind.  114. 

(131) 


113-114   SUPREME  COURT  OF  INDIANA. 


Cupps  V.  Irvin. 


trust,  and  enjoined  from  disturbing  tlie  complainant's 
possession,  and  for  general  relief.  The  Circuit  Court 
dismissed  the  bill  with  costs. 

In  determining  this  case,  it  is  not  necessar}^  to  say 
what  will  be  the  extent  of  the  complainant's  claim  when 
this  title-bond  shall  have  become  due.  The  defendant 
purchased  with  full  notice  of  the  bond,  and  the  testimony 
shows  that  the  complainant  has  good  cause  to  apprehend 
that  his  possession  will  be  disturbed;  and,  also,  that  the 
defendant  will  sell  and  assign  the  certificate  to  some  per- 
son without  notice  of  the  bond.  These  facts,  we  con- 
ceive, are  sufficient  to  entitle  the  complainant  to  a  decree, 
restraining  the  defendant  from  assigning  the  certificate 
without  notice;  and  from  interrupting  the  complainant's 
possession.  The  decree  of  the  Circuit  Court,- dismissing 
the  complainant's  bill,  is  accordingly  reversed;  and  this 
Court,  proceeding  to  give  such  a  decree  as  the  Circuit 
Court  ought  to  have  given,  do  strictly  enjoin  the  said 
Irvin  from  selling,  leasing,  mortgaging,  or  in  any  man- 
ner or  for  any  time  disposing  of,  the  said  30  acres  of 
land  piarticularly  described  in  the  title-bond  mentioned  in 
the  record  of  this  case  ;  and  from  assigning  the  certificate 
therefor  in  the  record  mentioned,  without  giving  notice 
to  the  purchaser,  lessee,  mortgagee,  assignee,  or  other 
person  concerned  as  aforesaid,  of  the  said  title-bond, 
whilst  the  same  shall  remain  unsatisfied ;  and  do  also  en- 
join the  said  Irvin,  and  ever}'  person  claiming  or  to 
claim,  by,  through,  or  under  him,  from  disturbing  or  in 
any  way  interrupting  the  possession  of  the  said  Cupps,  his 

heirs  and  assigns,  in  the  said  30  acres  of  land. 
[*114]        *To  be  certified,  &c.     Decree  for  costs  in  this 
Court. 

Nelson,  for  the  appellant. 

Naylor,  for  the  appellee. 


(132) 


NOVEMBER  TERM,  1827.  114 


Barlow  v.  The  State. 


Barlow  v.  The  State. 

Jury — Objections  to  When  Made. — If  one  of  the  petit  jurors,  summoned 
to  try  an  indictment,  was  on  the  grand  jui-y  that  found  the  bill,  the  de- 
fendant may  challenge  him.  But  he  can  not,  on  that  ground,  move  for 
a  new  trial  after  a  verdict  of  guilty,  if  he  knew  of  the  objection,  and 
omitted  to  make  it,  when  the  jury  was  impaneled  («). 

Verdicts — Affidavits  of  Jurymen. — The  affidavits  of  jurors  may  be  re- 
ceived in  support  of  their  verdict,  but  not  to  impeach  it  (b). 

Jury — Misconduct — Harmless  Error. — If  a  juror,  during  the  trial  of  a 
cause,  converse  with  a  bystander,  or  leave  the  Court  room  without  con- 
sent of  the  Court,  it  is  a  misdemeanor  for  which  he  may  be  punished. 
But  if  the  investigation  of  the  cause  was  not  interrupted,  if  nothing  took 
place  which  could  influence  the  juror,  and  if  no  attempt  was  made  to 
tamper  with  him,  the  misconduct  will  not  entitle  the  defendant  to  a  new 
trial,  after  a  verdict  against  him,  even  in  a  case  of  manslaughter  (c). 

ERROR  to  the  Hendricks  Circuit  Court. — Petition  for 
a  rehearing. 

Blackford,  J. — This  was  an  indictment  for  man- 
slaughter. Plea  not  guilty.  The  jury  found  the  defend- 
ant guilty,  and  fixed  the  period  of  his  imprisonment  at 
one  year.  The  defendant  mov^ed  for  a  new  trial,  the 
motion  was  overruled,  and  judgment  rendered  on  the  ver- 
dict. The  cause  has  been  brought  before  this  Court 
during  the  present  term,  and  the  judgment  afiirmedo 

There  are  two  grounds  taken  by  the  counsel  for  the 
plaintift*  in  error  in  their  petition  for  a  rehearing,  viz. 
1st,  that  two  of  the  petit  jurors  were  members  of  the 
grand  jury  that  found  the  indictment;  2dly,  that  there 
was  a  misbehavior  of  two  of  the  petit  jurors  during  the 
progress  of  the  trial. 

With  respect  to  the  first  ground,  the  fact  as  above 
stated  is  admitted  in  the  record,  but  the  afiidavits  of  the 
two  jurors  show,  that  the  defendant  below  had  previously 
known  of  their  being  on  the  grand  jury.  The  defendant 
does  not  deny  the  previous  knowledge,  but  states  in  his 

(a)  32  Ind.  384  ;  16  Id.  298  ;  5  Id.  122  ;  7  Id.  63  •  13  Id.  90  ;  46  Id.  132 ; 
58  Id.  182.  (6)  54  Ind.  339.  (c)  58  Ind.  293. 

(133) 


114-115    SUPREME  COURT  OF  INDIANA. 

Barlow  r.  The  State. 

affidavit  that  he  did  not  recollect  the  circumstance  when 
the  petit  jury  was  impaneled,  nor  did  it  occur  to  him 
until  after  the  verdict  had  been  returned.  The  counsel 
of  the  defendant  knew  nothing  of  the  fact,  until  after 
the  verdict  had  been  given.  The  admissibilit}'  of 
[*115]  the  ^affidavits  of  the  jurors  was  objected  to,  but 
the  Circuit  Court  admitted  them,  and  we  think 
correctly.  The  rule  is,  that  the  affidavits  of  jurors  may 
be  received  in  support  of  their  verdict,  though  not  to  im- 
peach it.  Dana  v.  Tucker,  4  Johns.  R.  487.  Here,  the 
defendant  had  once  known,  that  these  men  were  on  the 
grand  jury.  The  statement  of  his  not  recollecting  it  is 
insufficient.  An  affidavit  to  that  effect  could  never  be 
disproved.  This  part  of  the  case,  then,  presents  the 
question,  whether  the  objection,  known  to  the  defendant 
at  the  time  of  impaneling  the  jury,  but  not  made  until 
after  the  verdict,  was  good  on  a  motion  for  a  new  trial. 
We  think  it  was  not.  It  was  a  good  cause  of  challenge, 
but  being  known  to  the  party,  and  not  mentiond  at  the 
proper  time,  the  right  was  waived.  The  statute  of  Ed. 
3,  said  to  be  in  affirmance  of  the  common  law,  is,  "that 
no  indictor  shall  be  put  in  inquest  upon  deliverance  of 
the  indictees  of  felonies  or  trespass,  if  he  be  challenged 
for  that  same  cause  by  him  who  is  so  indicted."  2  Hawks. 
418.  That,  certainly,  does  not  warrant  the  making  of 
the  objection  after  verdict,  if  it  were  known  at  the  time 
of  swearing  the  jury.  In  the  cases  cited  for  the  plaintiff 
in  error,  so  far  as  we  have  had  an  opportunity  of  examin- 
^  ing  them,  the  objection  has  not  prevailed  on  a  motion  for 
\  a  new  trial,  where  it  was  known  at  the  time  for  making 
challeno:es,  but  was  then  nei>:lected  to  be  made.  There  is 
'  an  authority,  however,  for  the  contrarj'  doctrine,  which 
expressly  shows  that  the  exception  must  be  made  by  chal- 
lenge, if  known  in  time;  and,  if  neglected  then,  can  not 
afterwards  be  made  on  a  motion  for  a  new  trial.  The 
State  V.  O'Driscoll,  2  Bay's  Rep.  153. 

The  other  objection  in  the  petition  rests  on  the  misbe 

(134) 


I^OVEMBER  TERM,  1827.  115-11»3 

Barlow  r.  The  State. 

havior  of  two  of  the  petit  jurors.  This  point  came  be- 
fore the  Circuit  Court  on  affidavits.  Accordins:  to  one 
of  these,  a  juror,  after  the  testimony  had  been  given,  con- 
versed with  a  person  not  of  the  jury  respecting  the  case, 
and  asked  him  what  he  thought  about  the  evidence.  The 
deponent  was  passing  bj'  them  at  the  time  he  heard  the  said 
remark  by  the  juror,  and  did  not  know  what  further  con- 
versation passed.  The  affidavit  of  the  juror  himself  is, 
that  all  the  conversation  he  had  was,  that  he  asked  the 
person  to  stay  and  hear  the  result  of  the  trial  before  he 
went  home,  and  his  answer  was,  that  he  was  obliged  to  go. 
These  were  the  only  affidavits  as  to  that  juror. 
[*116]  Another  of  the  '-^jurors,  whilst  the  cause  was  pro- 
gressing, went  out  of  the  Court  house  and  stayed 
a  few  minutes.  His  own  affidavit  is,  that,  whilst  out,  he 
had  no  conversation  with  any  one;  that  he  was  moved  to 
go  by  a  pressing  natural  occasion,  and  that  he  returned 
as  soon  as  the  occasion  ceased.  The  other  affidavit  on 
the  subject,  is  not  inconsistent  with  that  of  the  juror. 

We  have  now  stated  the  substance  of  the  affidavits  as 
to  the  misconduct  of  the  jurors.  That  they  acted  very 
improperly,  there  can  be  no  doubt.  The  one  who  spoke 
to  a  bystander  was  guilty  of  a  misdemeanor,  and  liable 
to  punishment :  so  also  was  the  other,  who  went  out  of 
the  house  without  asking  leave  of  the  Court.  But 
whether  for  this  misconduct,  the  verdict  should  be  set 
aside,  is  altogether  a  diffisrent  question.  The  Circuit 
Court  may  have  very  correctly  concluded,  from  the  evi- 
dence adduced,  of  the  credibility  of  which  they  were  to 
judge,  that  the  misconduct  of  the  jurors  which  we  are 
now  considering,  and  which  occurred  during  the  trial, 
did  not  in  the  slightest  degree  delay,  or  in  any  manner 
interfere  with,  the  full  and  impartial  investigation,  and 
final  determination,  of  the  cause;  that  nothing  had  taken 
place  calculated  to  have  any  influence  on  the  minds  of 
the&e  jurors,  and  that  no  attempt  had  been  made  to  tam- 
per with  them  in  anv  wav  whatever. 

(13.5) 


116-117      SUPREME  COURT  OF  INDIANA. 

Barlow  v.  The  State. 

Where  the  jury,  on  the  trial  of  an  indictment  for  a  con- 
spiracy, after  the  ad^journment  of  the  Court  in  the  even- 
ing, separated  and  went  to  their  respective  homes,  with- 
out the  consent  or  knowledge  of  the  Court  or  of  the 
defendant,  and  attended  the  next  morning  at  the  meeting 
of  the  Court,  and  heard  the  residue  of  the  case. — it  was 
determined,  that  such  separation  of  the  jury  was  not  of 
itself  sufficient  to  vacate  their  verdict  against  the  defend- 
ant. The  King  v.  Kinnear,  2  Barnew.  &  Aid.  462.  It  is 
true,  the  case  before  the  Court  is  of  a  more  important  na- 
ture than  that  referred  to,  but  the  conduct  of  the  jury 
was  so  much  more  reprehensible,  and  the  opportunity  of 
their  being  tampered  with  so  much  greater,  in  the  one 
case  than  in  the  other,  that  the  decision  referred  to  is  en- 
titled to  great  weight  in  the  determination  of  the  question 
before  us  (1). 

We  are  clearly  qf  opinion,  therefore,  that  the  misbe- 
havior of  these  jurors  was  not  such  as  rendered  it  obliga- 
tory on  the  Circuit  Court  to  grant  the  new  trial  applied  for. 
We  have  now  examined  the  two  grounds  upon 
['''117]  which  the^counsel  for  the  plaintiff  in  error  have 
chosen  to  rest  their  petition ;  neither  of  which, 
in  our  opinion,  is  sufficient  to  show  that  their  client  is 
entitled  to  a  rehearing  ot  the  cause.  One  other  excep- 
tion to  the  judgment  below  was  made  in  the  argument 
which  took  place  previously  to  the  affirmance.  It  was  of 
a  different  character  from  those  we  have  just  considered 
and  had  relation  only  to  the  evidence.  That  objection 
not  being  alluded  to  in  the  petition  for  a  rehearing,  is  pre- 
sumed to  have  been  abandoned  by  the  counsel,  and  we 
think  correctly ;  we  have,  accordingly,  not  taken  particular 
notice  of  it  in  this  opinion.     The  rehearing  is  refused. 

Fletcher,  Hester,  and  Gregg,  for  the  plaintili*. 

Whjtcomb,  for  the  state. 

(1)  Vide  Rex  v.  Wool/,  1  Cliitt.  Rep.  401,  and  note  ;  The  People  v.  Douglass, 
4  Cowen,  26;  The  People  v.  Ransom,  7  Wend.  417,  423,  424;  Martin's  case, 
2  Leigh,  745;  Bosley  v.  Farfpiar.  ante,  pp.  (51,  67,  70,  and  note  (3). 

END  OF  NOVEMBER  TERM,  1827. 

(130) 


[*ii8]  *  CASES 

ARGUED  AXD  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF  INDIANA, 


AT  INDIANAPOLIS,   MAY  TERM,   1828,   IN  THE  TWELFTH  YEAB  OP 
THE  STATE. 


Berry  v.  Bates. 

Agreement  to  Extend  Time — Nudem  Pactum. — A.,  having  a  promissory 
note  against  B.  which  was  due,  promised  him  by  parol  and  without  con- 
sideration that  he  would  not  urge  the  payment  until  a  certain  future 
time.     Held,  that  the  promise  was  not  obligatory  (a). 

Same — Defence. — An  agreement  under  seal  not  to  sue  for  a  limited  time, 
can  not  be  pleaded  in  bar  as  a  release  :  the  defendant  must  resort  to  his 
action  on  the  agreement  (6). 

ERROR  to  the  Madison  Circuit  Court. — Bates  sued 
Berry  before  a  justice  of  the  peace  on  a  promissory  note, 
and- obtained  judgment.  Berry  appealed  to  the  Circuit 
Court,  and  judgment  was  there  rendered  in  favor  of 
Bates. 

Scott,  J. — The  defence  set  up  on  the  trial  below  was, 
that  on  the  third  of  May,  1827,  after  the  note  on  which 
suit  was  brought  had  become  due,  Berry  paid  Bates  a 
certain  other  debt  of  30  dollars  and  upwards,  and  2  dol- 

{a)  3  Ind.  346.     (6)  32  Ind.  40 ;  o  M.  178;  6  Blkf.  282. 

(137) 


118-119    SUPREME  COURT  OF  INDIAITA. 

Modisett  v.  Lindley  and  Another. 

lars  and- 66  cents  in  part  discharge  of  the  note  on  which 
suit  was  brought;  and  Bates  then  agreed,  that  he  would 
not  urge  the  payment  of  the  balance  of  the  note  until 
Christmas  following;  and  pledged  his  word  and  honor  to 
that  eflect.  The  Circuit  Court  very  correctly  decided 
that  Bates  was  not  legally  bound  by  that  promise. 
[*119]  *Even  an  agreement  under  seal,  not  to  sue  for 
a  limited  time,  can  not  be  pleaded  in  bar  as  a  re- 
lease. The  party,  in  that  case,  must  resort  to  his  action 
of  covenant  as  his  only  remedy.  2  Salk.  573;  5  Bac, 
Abr.  683;  1  Esp.  N.  P.  244  (1).  The  reason  of  the  rule 
applies  more  strongly  in  this  case,  where  a  mere  verbal 
promise  is  set  up  to  control  a  written  instrument  for  the 
payment  of  money.  The  payment  of  another  debt  and  a 
part  of  that  on  which  suit  was  brought,  after  the  whole 
had  become  due,  created  no  legal  consideration  for  the 
promise  of  forbearance;  and  the  promise  being  made 
without  consideration  was  not  legally  binding.  The 
plaintiff's  pledge  of  honor  for  the  performance  of  his 
promise  does  not  alter  the  case^  in  a  legal  sense.  He  who 
relies  on  such  security,  must,  when  the  pledge  fails,  abide 
the  consequences;  the  law  will  not  help  him  out. 

Per  Curiam. — The  judgment  is  affirmed  with  5  per  cent. 
damages  and  costs. 

Wick,  for  the  plaintiff, 

Fletcher  and  Bromi,  for  the  defendant. 

(1)  Vide  Reed  v.  Shaw,  Vol.  1  of  these  Kep.  245,  and  note. 


Modisett  v.  Lindley  and  Another. 

Agency — Authority  of  Agent. — If  an  a>;ent  execute  an  obligation  for 
his  principal  not  warranted  by  the  power,  the  principal,  being  unapprised 
of  the  nature  of  the  obligation,  will  not  be  bound  by  it,  though  he  was  in 
the  room  when  the  obligation  was  executed,  and  though  his  subsequent 
agent  conceived  himself  authorized  to  comply  with  similar  obligations  so 
executed  by  the  first  agent. 

(138) 


MAY  TERM,  1828.  119-120 

Modisett  v.  Lindley  and  Another. 

Same — Partners — Deed  of. — Although  one  partner  can  not  bind  his  co- 
partner by  deed,  yet  a  deed  executed  by  one  for  himself  and  partner,  in 
the  other's  presence,  and  by  his  authority,  is  the  deed  of  both  (a). 

APPEAL  from  the  Yigo  Circuit  Court. 

HoLMAN,  J. — Kitchell,  as  agent  for  the  defendants  un- 
der an  authorit}'  by  deed,  executed  certain  covenants  in 
favor  of  the  plaintiff,  in  which  he  transcended  his  author- 
ity in  a  material  part  of  the  covenants.  On  these  cove- 
nants this  action  was  founded.  The  defendants  pleaded 
non  est  factum.  On  the  trial  of  that  issue,  the  plaintifl" 
proved  by  competent  testimony,  that  one  of  the 
[*120]  two  defendants,  against  whom  this  suit  is  *prose- 
cuted,  was  in  the  room  at  the  time  Kitchell  exe- 
cuted these  covenants,  and  the  witness  thought  that  the 
other  was  present  also;  and  that  the  present  agent  of  the 
defendants,  conceived  himself  authorized  by  the  defend- 
ants to  take  up  such  covenants  as  these,  executed  by  Kit- 
chell in  behalf  of  the  defendants  in  favor  of  other  per- 
sons. And,  thereupon,  the  plaintiff's  counsel  prayed  the 
opinion  and  direction  of  the  Circuit  Court  to  the  jury, 
that  these  are  such  facts  as  will  make  these  acts  of  Kit- 
chell, the  former  agent  of  the  defendants,  although  not 
warranted  by  the  original  power  of  attorney  given  by 
said  defendants  to  said  Kitchell,  legally  operative  upon 
the  said  defendants;  which  direction  the  Court  refused 
to  give;  and  the  defendants  received  a  verdict  and  judg- 
ment. 

The  question  arising  out  of  the  refusal  of  the  Circuit 
Court  to  give  this  direction  to  the  jury,  is  the  only  point 
in  the  case.  This  question  is  simply  this :  Does  the 
presence  of  one  or  both  of  the  defendants  in  the  room,  at 
the  time  when  their  agent  executed  these  covenants, 
aided  by  the  opinion  of  the  present  agent  of  these  defend- 
ants, that  he  considers  himself  authorized  by  them  to 
treat  such  covenants  as  obligatory  on  them,  amount  in 

(a)  5]  Ind.  66 ;  49  Id.  521. 

(139) 


120-121    SUPREME  COURT  OF  INDIANA. 

Modisett  v.  Lindley  and  Another. 

law  to  a  ratilication  of  these  unauthorized  acts  of  Kit- 
chell,  or  to  an  adoption  of  these  covenants  as  their  own, 
so  as  to  support  the  issue  on  the  part  of  the  plaintiff,  that 
these  are  the  deeds  of  the  defendants?  This  question  has 
been  investigated  with  much  skill  and  industry  by  the 
counsel  on  both  sides,  and  many  cases  have  been  cited, 
most  of  which  bear  but  remotely  on  the  question. 

In  the  case  of  Ball  v.  Dunsterville,  4  D.  &  E.  313,  one 
partner  executed  a  deed  for  himself  and  partner,  in  the 
presence  and  by  the  authority  of  his  partner,  and  it  was 
held  to  be  the  deed  of  both.  In  Harrison  v.  Jackson,  7 
D.  &  E.  206,  one  partner  executed  a  deed  for  himself  and 
his  two  partners,  in  their  absence;  and  it  was  held  that 
it  was  not  the  deed  of  the  absent  partners.  Thus  it  ap- 
pears that  although  one  partner  can  not  bind  his  co- 
partner by  deed,  yet  a  deed  executed  by  one  for  himself 
and  partner,  in  the  other's  presence  and  by  his  authority, 
is  the  deed  of  both.  It  is  the  presence  of  the  partner 
that  does  not  seal,  constituting  an  implied  assent,  which 
is  construed  into  an  adoption  of  the  seal  as  his  own,  that 

renders  it  obligatory  upon  him.  In  the  case  be- 
[*121]    fore  us,  the  defendants  *were  present  in  the  room 

while  the  agent  was  executing  these  covenants; 
but  we  can  not  think  that  their  being  in  the  room  consti- 
tuted a  being  present,  in  the  sense  conveyed  in  Ball  v. 
Dunsterville.  In  that  case,  the  partner  who  did  not  seal 
must  have  been  attending  to,  and  cognizant  of,  what  his 
partner  was  doing.  Apart  from  such  an  idea,  that  case 
could  not  be  distinguished  from  Harrison  v.  Jackson.  In 
this  case,  the  defendants  were  in  the  room ;  but  it  does 
not  appear  that  they  were  paying  any  attention  to  the 
manner  in  which  their  agent  was  executing  the  authority 
they  had  delegated  to  him.  Besides  this,  in  Ball  v.  Dun- 
stermlle  the  execution  of  the  deed  was  the  principal  and  the 
only  important  circumstance  in  the  transaction.  Here, 
the  agent  had  authority  to  execute  covenants  for  the  de- 
fendants, and  we  are  led  to  presume  that  the  covenants 

(140) 


MAY  TERM,  1828.  121-122 

Modisett  V.  Lindley  and  Another. 

lie  executed  were  in  their  general  form  similar  to  those 
he  was  authin-ized  to  execute ;  so  that  the  defendants 
might  have  been  present,  so  as  to  know  that  he  was  exe- 
cuting covenants  on  their  behalf,  without  having  their 
attention  directed,  by  any  circumstance,  to  that  particu- 
lar part  of  the  instrimients  in  which  he  was  transcending 
liis  authority.  And  if  they  did  not  know  the  particular 
form  in  which  these  covenants  were  expressed,  their  being 
in  the  room  would  not  affect  the  case;  as  they  could  not 
be  presumed  to  sanction  that  with  which  it  does  not  ap- 
pear they  were  acquainted.  Therefore,  admitting  that 
although  the  agent  transcended  his  authority,  still  if  the 
principals,  when  they  knew  what  he  had  done,  assented 
to  it  either  by  expression  or  implication,  his  acts  would 
be  obligatory  upon  them;  yet  the  plaintiff  must  fail  in 
this  part  of  the  case. 

[N^or  can  the  case  derive  any  aid  from  the  other  branch 
of  the  testimony.  These  defendants,  it  seems,  have  an- 
other agent,  who  is  transacting  business  for  them  relative 
to  covenants  executed  by  Kitchell,  similar  to  those  on 
which  this  action  is  founded,  and  liable  to  the  same  ob> 
jections  ;  and  he  conceives  himself  authorized  by  the  de- 
fendants, to  take  up  such  covenants  as  if  they  were  obli- 
gatory. Now  what  is  the  amount  of  this?  Does  it  show 
that  the  defendants  had  any  knowledge  of  the  manner  in 
which  these  covenants  were  executed,  until  they  had  oyer 
of  them  in  the  present  action  ?  It  does  not  even  show, 
that  they  knew  the  form  of   those  other  covenants  of 

which  the  agent  speaks;  consequently  they  can 
[*122]    not  be  *supposed  to  have  ratilied  or  adopted  an 

act,  of  which  it  does  not  appear  that  they  had  any 
knowledge.  The  bare  opinion  of  the  agent,  as  to  his  au- 
thority relative  to  such  covenants,  is  not  of  such  a  nature 
as  to  sustain  an\"  legal  conclusion  against  the  defendants. 
If  the  defendants,  knowing  how  these  covenants  were 
drawn,  authorized  an  agent  to  treat  them  as  obligatory, 
it  would  present  a  different  state  of  things.     But,  niil-, :  ; 

(141) 


122-123   SUPREME  COURT  OF  INDIANA. 

Wynn  and  Another,  Executors,  v.  Hiday. 

tliey  possessed  such  knowledge,  we  can  not  conceive  how 
;my  act  of  theirs  could  be  made  to  bear  upon  this  ques- 
tion. They  knew  that  Kitchell  had  executed  covenants 
on  their  behalf,  and  might  reasonably  presume  that  he 
had  executed  them  according  to  the  authority  they  had 
delegated  to  him,  and  might  appoint  another  agent  to 
perform  these  covenants  for  them;  but  this  would  form 
no  conclusion  against  them,  if,  before  the  performance, 
they  should  discover  that  Kitchell  had  exceeded  his  au- 
tliority  in  the  execution  of  the  covenants.  So  that  ad- 
mitting the  general  doctrine  contained  in  all  the  cases 
cited  by  the  plaintiff,  yet  the  want  of  a  knowledge  in  the 
defendants  that  Kitchell  had  exceeded  his  authority,  de- 
stroys every  ground  of  conclusion  against  them,  that  can 
be  raised  either  from  their  being  in  the  room  when  these 
covenants  were  executed,  or  from  their  appointing  another 
agent  to  perform  similar  covenants  for  them.  A  knowl- 
edge of  what  was  done  must  necessarily  precede  any  im- 
plied adoption  or  ratification  of  the  act;  and  as  we  con- 
ceive that  this  evidence  falls  far  short  of  showing  that 
the  defendants  had  such  knowledge,  we  are  of  opinion, 
that  the  evidence  will  not  warrant  the  idea  that  the  de- 
fendants have  ratified  or  adopted  these  acts  of  their  agent, 
and  that  therefore  the  Circuit  Court  acted  correctly  (1). 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Jiidah,  for  the  appellant. 

Dewey  and  Tabbs,  for  the  appellees. 

(1)  Vide  Posey  v.  Bulliil,  Vol.  1  of  these  Eep.  99,  and  note ;  Flood  v.  Yan- 
des,  Id.  102;  Deming  v.  Btdlitt,  Id.  241,  and  notes. 


[*123]  *WyxNN  and  Another,  Executors,  v.  Hiday. 

KoTE— Failure  of  Consideration— Breach  of  Warranty.— To  debt  on 
a  writing  obligatory  for  the  payment  of  money,  the  defendant  pleaded 
that  the  obligation  had  been  given  for  a  pair  of  mill  stones,  fraudulently 
represented  to  be  good,  but  which  were  of  no  value  («). 

(a)  22  Ind.  51 ;  47  Id.  259  ;  45  Id.  268  ;  5  Blkf.  225,  349 ;  7  Id.  136,  501 : 
Aid.  349. 

(142) 


MAY  TKRM,  1828.  123 

AVynn  and  Another,  Executors,  i'.  Hiday. 

Held,  that  in  this  case,  and  in  that  of  a  breach  of  warranty,  if,  in  addition 
to  the  fraudulent  representation,  or  to  the  breach  of  Avarranty,  the  de- 
fendant prove  that  the  article  is  of  no  value,  or  that  it  has  been  returned 
or  tendered  within  a  reasonable  time,  he  defeats  the  action ;  but  if  it  ap- 
pear that  the  article  is  of  some  value  and  has  not  been  returned  or  ten- 
dered, the  plaintiff  recovers  the  value. 

ERROR  to  the  Madison  Circuit  Court. — This  was  an 
action  of  debt  brought  by  L.  Wynn,  J.  Wynn,  and  L. 
Abraham,  executors  of  T.  Wynn,  deceased,  against  J.  B. 
Hiday,  on  a  writing  obligatory,  executed  by  the  defend- 
ant to  the  plaintffs'  testator  for  the  payment  of  62  dol- 
lars. Pleas,  1st  that  the  obligation  was  obtained  by  fraud, 
covin,  and  misrepresentation,  to  wit,  by  the  testator's 
falsely  and  fraudulently  representing  to  the  defendant 
that  he,  the  testator,  owned  a  pair  of  good  merchantable 
mill  stones,  and  by  selling  them  to  the  defendant;  that 
the  mill  stones  Avere  not  good  and  merchantable  as  rep- 
resented, but  wholly  without  value ;  2ndly,  that  the  obli- 
gation was  obtained  by  fraud,  covin,  and  misrepresent- 
ation— omitting  the  circumstances  of  the  fraud.  Repli- 
cation to  the  first  plea,  denj'ing  the  fraud  and  the  want 
of  value;  and  issue.  Replication  to  the  second  plea,  that 
the  obligation  was  duly  obtained;  and  issue. 

After  the  evidence  was  closed,  the  plaintiffs  called  on 
the  Court  to  instruct  the  jury,  that,  under  the  pleas  of  a 
total  failure  of  consideration,  they  could  not  find  a  par- 
tial failure.  This  instruction  the  Court  refused.  Ver- 
dict in  favor  of  the  plaintiffs  for  2  dollars,  and  judgment 
accordingly. 

Blackford,  J. — According  to  the  statute,  the  defendant 
may  plead  to  an  action  on  a  specialty  like  the  present, 
the  want  or  failure  of  the  consideration,  or  of  any  part  of 
it.  The  plaintiffs  contend,  that  where  there  is  a  plea  of 
a  total  failure  of  consideration,  under  this  statute,  the 
whole  plea  must  be  proved,  or  the  defence  amounts  to 
nothing.     In  this  we  think  he  is  mistaken.     If  the  de- 

(143) 


123-124   SUPREME  COURT  OF  IXDIA^'A. 


Wynn  and  Another,  Executors,  v.  Hiday. 

fendant  under  his  plea  suitable  to  the  case,  of  a  total 
failure  of  consideration,  prove,  in  addition  to  the 
[*124]  fraudulent  *representation8,  or  to  the  breach  of 
warranty,  that  the  article  is  of  no  value,  or  has 
been  returned,  or  tendered,  within  a  reasonable  time,  he 
defeats  the  action.  But  where  the  article  is  worth  some- 
thing, and  has  not  been  returned  or  tendered,  the  plain- 
tiif  is  entitled  to  the  value.  This  we  conceive  to  be  the 
fair  construction  of  the  statute,  and  one  which  will  pre- 
vent a  multiplicity  of  law  suits,  and  tend  to  the  further- 
ance of  justice  (1). 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Fletcher,  for  the  plaintiffs. 
Sweetser,  for  the  defendant. 

(1)  K.  C.  1824,  pp.  294,  295.  The  act  of  1831  h  the  same  as  that  of  1824, 
and  is  as  follows  :  "In  any  action  founded  upon  any  specialty  or  other 
contract  (conveyances  of  real  estate  and  instruments  negotiable  by  the  law 
merchant  excepted,)  the  defendant,  by  special  plea,  may  allege  the  want  of 
a  failure  of  the  consideration  or  any  part  thereof,  of  such  specialty  or  other 
contract;  and  if  any  specialty  or  other  contract  (excepting  as  aforesaid)  is 
alleged  in  any  other  stage  of  the  proceedings,  the  other  party  may  aver  in 
answer  and  prove  on  trial,  the  want  of  failure  of  the  consideration  in  the 
whole  or  part,  of  such  specialty  or  other  contract,  and  whenever  such  specialty 
or  other  contract  shall  be  given  in  evidence,  without  being  pleaded,  the 
other  party  may  (excepting  as  aforesaid)  prove  the  want  of  failure  of  the 
consideration  or  part  thereof,  of  such  specialtv  or  other  contract."  R.  C. 
1831,  p.  405. 

Assumpsit  on  a  promissory  note.  Plea,  non-assumpsit,  except  as  to  a 
certain  sum,  and  as  to  that  a  tender.  A  notice  was  attached  to  the  plea  of 
matter  intended  to  be  given  in  evidence,  viz  :  that  the  consideration  of  the 
note  declared  on  was  the  making  of  a  quantity  of  jirovision  bari'els  by  the 
plaintiff  for  the  defendant,  under  an  agreement  to  manufacture  the  same  so 
that  they  would  pass  inspection  under  the  law  regulating  the  inspection  of 
beef  and  pork  ;  that  a  portion  of  the  barrels  were  manufactured  in  an  un- 
skillful manner,  and  not  in  compliance  with  the  terms  of  the  contract, 
whereby  the  defendant  lost  the  sale  of  the  same.  On  the  trial,  the  defend- 
ant oflered  to  prove  the  facts  set  forth  in  his  notice.  The  evidence  was  ob- 
jected to,  and  the  objection  sustained.  Verdict  for  the  plaintiff.  The  Su- 
preme Court,  on  a  motion  for  a  new  trial,  said,  that  in  Beecker  v.  Vrooman,  13 
Johns,  R.  302,  it  is  settled,  that  deceit  in  the  sale  of  a  chattel  may  be  shown 
in  bar,  or  in  mitigation;  and  that  the  same  principle  would  admifthe  de- 
fence in  the  case  before  the  Court,  except  as  to  the  amount  paid  into  Court. 
New  trial  granted.     Spalding  v.Vfiiukrrooh,  2  Wend.  431. 

Assumpsit  in  the  Common  Pleas  for,  inter  alia,  45  dollars,  the  stipulated 
price  of  a  cooking  stove.  The  defendant,  on  trial,  in  pursuance  of  a  notice 
attached  to  his  plea,  oflfered  to  ])rove  that  the  plaintiff  warranted  the  stove 
to  draw  and  carry  smoke  well  and  to  cook  well,  and  that  the  stove  did  not 

(144) 


MAY  TERM,  1828.  124-125 

Wynn  and  Another,  Executors,  v.  Hiday. 

draw  and  carry  smoke  well  ;  that  after  every  possible  experiment  made,  it 
was  found  it  would  not  draw  ;  that  the  bottom  plate  was  warped,  and  that 
the  plates  did  not  fit  together;  that  the  defendant  took  the  stove  to  the 
plaintiff  and  offered  to  return  it,  but  that  the  plaintiff  refused  to  receive  it 
back.  It  was  not  pretended  that  there  was  any  fraud  in  the  sale,  but  it  was 
insisted  that  the  evidence  was  admissible  asaset-off  of  damages  for  the  breach 

of  the  warranty,  and  to  reduce  the  amount  of  the  damages.  The  evi- 
[*125]    dence  was  objected  to,  and  the  *objection  sustained.     The   Court 

charged  the  jury,  that  the  plaintiff  was  entitled  to  recover  the  price 
of  the  stove.  Verdict  and  judgment  for  the  plaintiff.  The  defendant  took 
the  cause  to  the  Supreme  Court  by  writ  of  error,  and  relied  on  Spalding  v. 
Vandercook,  2  Wend.  431  ;  Hills  v.  'Bannister,  8  Cowen,  31  ;  Locke  v.  Smith,  10 
Johns.  250  ;  Euni/an  v.  Nichols,  11  Johns.  547  ;  Beecker  v.  ^'7•oovlan,  13  Johns. 
302;  King  v.  Paddock,  18  Johns.  141  ;  Bastenv.  Butter,  7  East,  749;  Cormnck 
V.  Gillis,  cited  in  that  case,  and  King  v.  Boston,  there  cited  in  a  note.  Lewis 
v.  Cosgrave,  2  Taunt.  2;  Fisher  v.  Sumuda,  1  Camp.  190  ;  2  Stark.  Ev.  640, 
644,  645 ;  Miller  v.  Smith,  1  Mason,  437  ;  Curtis  v.  Hnnnuy,  3  Esp.  R.  82  ; 
Jones  v.  Scriven,  8  Johns.  453  ;  White  v.  T'ra?-d,  9  Johns.  232;  Grant  v.  Button, 
14  Johns.  377.  For  the  defendant  in  error  were  cited,  Howlet  v.  Strickland, 
Cowp.  56  ;  Weigall  v.  Waters,  6  T.  R.  488 ;  Gordan  v.  Bourne,  2  Johns.  150,  155 ; 
Hepburn  v.  Hoag,  6  Cowen,  613 ;  Sherman  v.  Ballon,  8  Cowen,  304,  310;  Dun- 
can v.  Lyon,  3  Johns.  Ch.  R.  351,  357,  359 ;  Livingston  v.  Livingstm  4  Johns, 
Ch.  R.  287,  292,  293 ;  Weston  v.  Downes,  Doug.  23 ;  Powers  v.  Wells,  Cowp. 
818  ;  Towers  v.  Barrett,  1  T.  R.  133;  Payne  v.  Whale,  7  East,  274;  Thornton 
y.  Wynn,  12  Wheat.  183  ;  Tye  v.  Gun/nne,  2  Campb.  346  ;  Farnsworth  v.  Gar- 
rard,  1  Campb.  38,  40  ;  Barnard  v.  Leigh,  1  Stark.  R.  43.  The  defendant  in 
error  contended,  that  it  was  necessary  to  show  fraud  to  let  in  such  a  de- 
fence as  was  offered  in  this  case. 

The  Court  delivered  an  elaborate  opinion  in  favor  of  the  plaintiff  in  error, 
saying  that  when  the  damages  arising  from  a  breach  of  a  warranty  in  the 
sale  of  chattels  had  been  allowed  to  be  given  in  evidence,  to  reduce  the 
amount  of  recovery  below  the  stipulated  price,  the  defence  was  admitted  to 
avoid  circuity  of  action;  that  a  second  litigation  on  the  same  matter  should 
not  be  tolerated,  where  a  fair  opportunity  could  be  afforded  by  the  first  to 
do  final  and  complete  justice  to  the  parties;  and  that  if  a  defence  resting  on 
such  a  principle  was  allowed,  as  they  thought  it  was,  in  a  case  of  a  war- 
ranty mala  fide,  they  saw  no  good  reason  for  not  allowing  it  in  a  case  of  a 
warranty  bona  fide.  The  authorities  cited  by  the  Court,  not  referred  to  by 
the  counsel,  were  Leggetl  v.  Cooper,  2  Stark.  R.  103 ;  Frisbee  v.  Hoffnagle,  11 
Johns.  50.  Judgment  of  the  Common  Pleas  re  versed.  JSP  Allister'\.  Reab,  4 
Wend.  483.  The  defendant  in  error  removed  the  case  to  the  Court  of 
Errors,  where,  after  a  full  investigation,  the  judgment  of  the  Supreme  Court 
was  aifimied.  The  opinion,  expressed  in  the  Court  of  Errors  by  the  Chan- 
cellor, is,  that  it  appeared  to  be  settled  in  England  that,  when  there  has 
been  a  .sale  either  upon  a  warranty  as  to  the  goodness  of  the  article  sold,  or 
upon  a  fraudulent  misrepresentation  of  its  value,  if  a  suit  be  brought  on  the 
original  contract  of  sale,  the  defendant  may,  upon  notice  of  such  defence 
given  with  the  general  issue,  prove  the  fraud  or  breach  of  warranty  in  mitiga- 
tion of  damages  ;  and  that  the  law  was  the  same,  according  to  the  New  York 
decisions,  although  a  bill  or  note  be  given  for  the  purchase-money.  Beab 
y.  M'Allister,  8  \yend.  109.  The  authorities  mentioned  by  the  Chancellor, 
in  the  case  last-cited,  not  noticed  in  the  cause  before  the  Supreme  Court,  are 
Fvum  V.  Grey,  12  Martyn's  R.  478  ;  Sample  v.  Looney,  1  Overton's  T.  R.  85; 
Poullon  v.  Luttimore,  4  Man.  &  Ry.  R.  208.     S.  C.  9  Barn  &  Cress.  259. 

Poulton  v.  Laltimore,  supra,  was  decided  in  1829.  It  was  an  action  of  as- 
sumpsit to  recover  the  contract  price  of  a  certain  quantity  of  cinq  foin  seed, 
■warranted  to  be  good  new  growing  seed.  Plea,  non-assumpsit.  It  was 
proved  that  the  seed  was  not  good  growing  seed  ;  that  the  defendant  had  not 

Vol.  II.— 10  (145) 


125-126    SUPREME  COURT  OF  INDIANA. 


Wynn  and  Another,  Executors,  r.  Hid  ay. 


returned  it,  but  had  sowed  part  and  sold  the  residue;  and  that  the  part  sold 
had  proved  wholly  unproductive.  Verdict  for  the  defendant.  Littledale, 
.J. — "Where  goods  are  warranted,  the  vendee  is  entitled,  though  he  do  not 

return  them  to  the  vendor,  or  give  notice  of  their  defective  quality,  to 
[*r26]     bring  *an  action  for  breach  of  the  warrant}';  or,  if  an  action  be 

brought  against  him  by  the  vendor  for  the  price,  to  prove  the  breach 
of  the  warranty,  either  in  diminution  of  damages,  or  in  answer  to  the  action 
if  the  goods  be  of  no  value."     Judgment  for  the  defendant. 

The  following  case  occurred  in  1831  :  Assumpsit  for  the  price  of  a  horse 
sold  and  delivered.  Plea,  non-assumpsit.  Verdict  for  the  defendant. 
Eule  to  show  cause  why  the  verdict  should  not  be  set  aside,  and  a  verdict 
entered  for  the  plaintiii'  for  43/.  The  cases  cited  in  support  of  the  rule,  not 
mentioned  in  the  opinion  of  the  Court,  are  Fielder  v.  /Starkin,  1  H.  Bl.  17; 
Parker  v.  Palmer,  4  Barn  &  Aid.  387  ;  Hunt  v.  Silk,  5  East,  449.  _  Lord  Ten- 
TERDEN,  C.  J. — "The  facts  of  the  case  were  these :  The  plaintifl",  on  the  2d 
of  February,  sold  the  horse  to  the  defendant  for  43/,  with  a  warranty  of 
soundness.  "  The  defendant  took  the  horse,  and  on  the  same  day  sold  it  to 
Bailey  for  45/.  Bailey,  on  the  following  day,  parted  with  it  in  exchange  to 
Osborne  ;  and  Csborne,  in  two  or  three  days  afterward,  sold  it  to  the  defend- 
ant for  30/.  No  warranty  appeared  to  have  been  given  on  any  of  the  three 
last  sales  The  horse  was,  in  fact,  unsound  at  the  time  of  the  first  sale ;  and 
on  the  9th  of  Februrry  the  defendant  ofifered  to  return  it  to  the  plaintiff, 
who  refused  to  accept  it.  The  cjuestion  for  consideration  is,  whether  the 
defendant,  under  these  circumstances,  had  a  right  to  return  the  horse,  and 
thereby  exonerate  himself  from  the  payment  of  the  whole  price  ? 

"It  is  not  necessary  to  decide,  whether  in  any  case  the  purchaser  of  a 
specific  c/ia//e/,  who,  having  had  an  opportunity  of  exercising  his  judgment 
upon  it  has  bought  it,  with  a  warranty  that  it  is  of  any  particular  quality 
or  description,  and  actually  accepted  and  received  it  into  his  possession,  can  af- 
terwards, upon  discovering  that  the  warranty  has  not  been  complied  with, 
of  his  own  will  only,  without  the  concurrence  of  the  other  contracting  party, 
return  the  chattel  to  the  vendor,  and  exonerate  himself  from_  payment  of 
the  price,  on  the  ground  that  he  has  never  received  that  article  which  he 
stipulated  to  purchase.  There  is,  indeed,  authority  for  that  position.  (Cur- 
tis v.  Hannay,  3  Esp.  K.  82,  and  2  Stark.  Ev.  645,  are  here  referred  to.)  It 
is,  however,  extremely  difficult,  indeed  impossible,  to  reconcile  this  doctrine 
with  those  cases  in  Avhich  it  has  been  held,  that  where  the  property  in  the 
specific  chattel  has  passed  to  the  vendee,  and  the  price  has  been  paid,  he  has 
no  right,  upon  the  breach  of  the  warranty,  to  return  the  article  and  revest 
the  property  in  the  vendor,  and  recover  the  price  a.s  money  paid  on  a  con- 
sideration which  has  failed,  but  must  sue  upon  the  warranty,  unless  there 
has  been  .i  condition  in  the  contract  autliorizing  the  return,  or  the  vendor 
has  received  back  the  chattel,  and  has  thereby  consented  to  rescind  the  con- 
tract, or  has  been  guilty  of  a  fraud,  which  destroys  the  contract  altogether. 
Westm\.  Doumes,  1  Doug.  23  ;  Towers,  v.  Barrett,!  T.  E.  133  ;  Payne  v.  Whale, 
7  East,  274;  Poicer  v.  Welk,  Doug.  24,  n.;  Emanuel  v.  Dane,  3  Campb.  299; 
where  the  same  doctrine  was  applied  to  an  exchange  with  a  wai-ranty,  as  to 
a  sale,  and  the  vendee  held  not  to  be  entitled  to  sue  in  trover  for  the  chattel 
delivered,  by  way  of  barter,  for  another  received.  If  these  cases  are  rightly 
decided,  and  we  think  they  are,  and  they  certainly  have  been  always  acted 
upon,  it  is  clear  that  the  purchaser  can  not  by  his  own  act  a-lone,  unless 
in  the  excepted  cases  above  mentioned,  revest  the  property  in  the  seller,  and 
recover  the  price  when  paid,  on  the  ground  of  the  total  failure  of  considera- 
tion ;  and  it  .seems  to  follow  that  he  can  not,  by  the  same  means  protect  him- 
,self  from  the  payment  of  the  price  on  the  same  ground.  On  the  other  hand, 
the  cases  have  established,  that  the  breach  of  the  warranty  may  be  given  in 
evidence  in  mitigation  of  damages,  on  the  principle,  as  it  should  seem,  of 
avoiding  circuity  of  action.     Cormack-v.  Gillis,  cited  7  East,  480;  King  v. 


(146) 


MAT  TERM,  1878.  126-127 


Patterson  v.  Kise  and  Another. 


Boston,  7  East,  481,  n. ;  and  there  is  no  hardship  in  such  a  defence  being  al- 
lowed, as  the  phiintifi' ought  to  be  prepared  to  prove  u  compliance  with  his 
warranty,  which  is  part  of  the  consideration  for  the  specific  price  agreed 

by  the  defendant  to  be  paid. 
[*127]  *"It  is  to  be  observed,  that  although  the  vendee  of  a  specific  chat- 
tel, delivered  with  a  warranty,  may  not  have  a  right  to  return  it, 
thcsame  reason  does  not  apply  to  cases  of  executory  contracts,  where  an 
article,  for  instance,  is  ordered  from  a  manufacturer,"who  contracts  that  it 
shall  be  of  a  certain  quality,  or  fit  for  a  certain  purj^ose,  and  the  article 
sent  as  such  is  never  t•om}^letely  accepted  by  the  party  ordering  it.  In  this 
and  similar  cases  the  latter  may  return  it  as  soon  as  he  discovers  the  defect, 
provided  he  has  done  nothing  more  in  the  meantime  than  was  necessary  to 
give  it.a  fair  trial.  Okell  v.  Smith,  1  Stark.  M.  P.  C.  107  ;  nor  would  the  pur- 
chaser of  a  commodity,  to  be  afterwards  delivered  according  to  sample,  be 
bound  to  receive  the  bulk,  which  may  not  agree  with  it ;  nor  after  having 
received  what  was  tendered  and  delivered  as  being  in  accordance  with  the 
sample,  will  he  be  precluded  by  the  simple  receipt  from  returning  the  article 
within  a  reasonable  time  for  the  purpose  of  examination  and  comparison. 
The  observations  above  stated  are  intended  to  apply  to  the  purchase  of  a 
certain  specific  chattel,  accepted  and  received  by  the  vendee,  and  the  proper- 
ty in  which  is  completely  and  entirely  vested  in  him. 

"But  whatever  may  be  the  right  of  the  purchaser  to  return  such  a  war- 
ranted article  in  an  ordinary  case,  there  is  no  authority  to  show  that  he  may 
return  it  where  the  purchaser  has  done  more  than  was  consistent  with  the 
purpose  of  trial,  where  he  has  exercised  the  dominion  of  an  owner  over  it, 
by  selling  and  parting  with  the  property  to  another,  and  where  he  has  de- 
rived a  pecuniary  benefit  fi-om  it.  These  circumstances  concur  in  the  pres- 
ent case;  and  even  supposing  it  might  have  been  competent  for  the  de- 
fendant to  return  this  horse,  after  having  accepted  it,  and  taken  it  into 
his  possession,  if  he  had  never  parted  with  it  to  another,  it  appears  to  us 
that  he  can  not  do  so  after  the  re-sale  at  a  profit. 

"These  are  acts  of  ownership  wholly  inconsistent  with  the  purpose  oi 
trial,  and  which  are  conclusive  against  the  defendant,  that  the  particular 
chattel  was  his  own  ;  and  it  may  be  added,  that  the  parties  can  not  be 
placed  in  the  same  situation  by  the  return  of  it  as  if  the  contract  had  not 
been  made,  for  the  defendant  has  derived  an  intermediate  benefit  in  conse- 
quence of  the  bargain,  which  he  would  still  retain.  But  he  is  entitled  to 
reduce  the  damages  as  he  has  a  right  of  action  against  the  plaintiff  for  the 
breach  of  warranty.  The  damages  to  be  recovered  in  the  present  action 
have  not  been  properly  ascertained  by  the  jury,  and  there  must  be  a  new 
trial,  unless  the  parties  can  agree  to  reduce  the  sum  for  which  the  verdict 
is  to  be  entered  ;  and  if  they  do  agree,  the  verdict  is  to  be  entered  for  that 
sum.  Rule  absolute  on  the  above  terms."  Street  v.  Blay,  2  Barn  &  Adoi. 
456. 


Patterson  v.  Kise  and  Another. 

Akrest^Justification  — Writ. — Although  in  a  justice's  warrant  for  the 
apprehension  of  an  offender,  the  time  when  the  offence  was  alleged  to 
have  been  committed  be  subsequent  to  the  date  of  the  warrant,  the  con- 
stable is  justifiable  in  executing  it. 

(147) 


1C>7-128     SUPREME  COURT  OF  INDIANA. 


Patterson  v.  Kise  and  Another. 


Same. — If  the  defendant,  in  pleading  a  warirant  in  justification  of  an  arrest, 

aver  that  he  was  an  acting  deputised  constable  of  the  county,  the  word 

deputised  may  be  considered  as  surplusage ;   and  the  plea  will  be  good, 

though  it  do  not  .set  out  the  defendant's  appointment,  nor  allege  that  the 

warrant  was  shown  to  the  plaintiff,  nor  that  it  was  returned  (a). 

f*128]   Same — Justification. — *Though  two  ofTences  against  the  party  be 

charged  in  the  warrant,  yet,  if  the  justice  has  jurisdiction  over 

both,  the  constable  is  bound  to  execute  it. 

AME — Assistance. — A  person  acting  as  a  special  constable  to  execute  a 
warrant,  is  authorized  to  command  assistance  in-case  of  opposition. 

ERROR  to  the  Hendricks  Circuit  Court. 

Scott,  J. — To  an  action  of  assault  and  battery,  the  de- 
fendants pleaded  a  justification  under  a  warrant  from  a 
justice  of  the  peace;  to  which  plea  there  was  a  demur- 
rer, and  judgment  for  the  defendants. 

It  is  objected,  1st,  that  the  warrant  set  out  in  the  plea 
shows,  on  its  face,  that  it  w\as  for  an  oftence  committed 
posterior  to  its  date;  2ndly,  that  there  is  no  averment 
that  the  defendant  showed  the  warrant;  3rdly,  that  it  is 
not  shown  that  the  warrant  was  returned;  4thly,  that  the 
plea  does  not  show  the  appointment  of  the  constable; 
5thly,  that  the  warrant  purports  to  be  for  an  aifray  or 
assault  and  battery  over  which,  jointly,  the  justice  had 
no  jurisdiction ;  Gthl}^  that  the  defendant,  Kise,  styles 
himself  an  acting  deputised  constable  of  the  county  of 
Hendricks,  when  our  law  knows  no  such  officer;  and 
7thly,  that  although  the  plea  may  be  a  justification  to 
Kise,  the  constable,  yet  it  is  no  justification  as  to  "Wilson, 
who  acted  as  an  assistant. 

To  the  first  objection  it  may  be  replied,  that  it  was  not 
essential  to  the  validity  of  the  warrant,  that  the  time  of 
committing  the  offence  should  be  set  out.  Without  such 
statement,  the  command  of  the  justice  was  binding  upon 
the  constable.  The  statement  of  an  impossible  time  is 
therefore  to  be  regarded  as  redundant.  See  5  Bac.  Abr. 
415.     But  were  it  necessary  that  the  day  of  the  oftence 

(a)  4  Blkf.  171 ;  5  Id.  206 ;  15  Ind.  26,  as  to  return  overruled  in  4  Blkf. 
330. 

(148) 


MAY  TEKxM,  1828.  128-129 

Patterson  v.  Kise  and  Another. 

should  be  expressly  stated,  a  constable  has  no  power  to 
judge  in  such  cases:  he  was  commanded  to  arrest  the 
oftender  and  bring  him  before  the  justice,  and  he  was 
bound  to  obey  that  command.  See  6  Bac.  Abr.  p.  166; 
Cro.  James,  p.  280.  To  tlie  second  objection,  it  is  neces- 
sary only  to  reply  that  the  defendant,  Kise,  states  that  he 
was  an  acting  constable  of  the  county  of  Hendricks.  The 
word  deputised  is  redundant  and  may  be  rejected.  As  he 
was  an  acting  constable  of  the  county,  with  a  justice's 
warrant  in  his  hand,  all  persons  were  bound  to  recognize 
him  as  an  otiicer  and  obey  him  accordingly.  This  also, 
is  an  answer  to  the  fourth  and  sixth  objections  ta 
[*129]  the  plea.  The  third  *point  has  the  sanction  of 
some  authorities.  It  was  formerly  held,  that, 
where  an  officer  justilies  under  a  process  which  is  return- 
able, he  must  show  that  it  has  been  duly  returned;  but 
the  later  decisions  do  not  require  a  return,  and  w^e  think 
they  are  more  consistent  with  justice,  and  founded  on 
better  reason.  See  Be.alls  v.  Guernsey,  8  Johns.  R.  52,  and 
the  authorities  there  cited.  The  fifth  objection  is  obvi- 
ated by  a  reference  to  the  statute,  R.  C.  1824,  p.  236,  where 
jurisdiction  is  expressly  given  to  justices  of  the  peace,  of 
assaults  and  batteries,  and  aftrays,  &c. ;  and  two  offences 
being  named  in  the  warrant,  could  not  justify  the  con- 
stable in  disobeying  the  command  of  the  justice,  who  had 
jurisdiction  of  both  or  either  of  them.  If  we  can  under- 
stand anything  by  the  seventh  objection,  it  is  the  idea  of 
the  plaintiff's  counsel  that  the  defendant,  Kise,  was  act- 
ing as  a  special  constable  for  that  particular  occasion,  and 
that  in  that  capacity  he  had  no  power  to  command  assist- 
ance in  case  of  opposition.  The  contrary  doctrine,  we 
think,  is  clearly  deducible  from  our  statutes.  R.  C  1824, 
pp.  82.  246 ;  and  it  is  also  settled  by  various  decisions. 
See  1  Litt.  R.  268 ;  2  Litt.  R.  367 ;  8  Johns.  R.  54. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Brown  and  Gregg,  for  the  plaintiff. 

Fletcher,  for  the  defendants. 

(149) 


129-130    SUPREME  COURT  OF  INDIANA. 

Sweny  and  Others  v.  Ferguson,  Adm'x,  and  Others.     In  Chancery. 


SwENY  and  Others  v.  Ferguson,  Administratrix,  and 
Others.     In  Chancery  (a). 

THE  heirs  of  Sweny  filed  a  bill  in  chancery  against 
the  administratrix  and  the  heirs  of  Ferguson.  The  bill . 
states  that  Ferguson,  deceased,  was  the  administrator  of 
the  estate  of  the  complainant's  father;  that  he  sold  the 
property  which  came  into  his  hands  as  administrator  for 
a  large  amount,  the  most  of  which  he  converted  to  his 
own  use;  and  that  his  estate  is  insolvent.  It  further 
states  that  Ferguson,  in  his  life-time,  conveyed  a  certain 
tract  of  land  to  his  son,  one  of  the  defendants,  for  the 
purpose  of  defrauding  the  complainants.     The  prayer  of 

the  bill    is,  that  a  decree    be   rendered   for   the 
[*130j    *amount  of  the  complainant's  claim,  and  that  the 

land  so  fraudulently  conveyed  be  sold  to  satisfy 
the  same.     The  bill  was  taken  ^;ro  confesso. 

The  Court,  on  examination  of  the  bill,  allegations,  and 
proofs,  decreed  that  the  defendants  should  pay  to  the  com- 
plainants the  sura  of  491  dollars;  and,  if  the  same  were 
not  paid  on  service  of  a  copy  of  the  decree,  the  land 
should  be  sold,  &c. 


Rapp  v.  Grayson,  on  Appeal. 

Commission  Merchant — Liability — Custom  (6). 

THE  refusal  of  the  Court  to  give  instructions  to  the 
jury,  which  are  good  law  but  not  applicable  to  the  case, 
can  not  be  assigned  for  error. 

The  usages  of  commerce  regulate  the  duties  and  privi- 
leges of  commission  merchants,  and  generally  form  their 
contracts  in  business;  which  usages  are  matters  of  fact, 
and  susceptible  of  proof. 

(a)  4Ind.  546. 

(b)  23  Ind.  399 ;  10  Id.  325. 

(150) 


MAY  TERM,  1828.  130-131 

Kapp  r.  Grayson,  on  Appeal. 

It  is  as  much  the  tlutj  of  a  commission  merchant  to 
obey  instructions,  with  re_o-ard  to  the  shipping  of  goods 
deposited  with  liim  to  be  shipped,  as  it  is  to  keep  them 
safely  while  in  his  care.  This  duty  devolves  on  all  who 
are  acting  for  him  as  clerks  or  agents;  and,  while  they 
are  recognized  as  acting  for  him,  their  authorit}^  must  be 
presumed  to  be  co-extensive  with  his,  as  to  the  business 
he  is  thus  transacting  by  them. 

G.  deposited  goods  in  the  warehouse  of  R.,  a  commis- 
sion merchant,  and  R.  agreed  to  ship  the  goods  to  a  cer- 
tain place  by  a  good  boat,  but  not  with  W.  and  his  boat. 
R.,  afterwards,  shipped  the  goods  with  W.  and  in  his 
boat.  Held,  m  case  the  goods  were  lost, — iirst,  that  R. 
■was  liable  to  G.  for  the  damages  sustained  by  the  loss, 
and  that  he  would  have  been  so  liable,  had  he  merel}^  con- 
tracted for  the  safe  keeping  of  the  goods;  secondly,  that 
even  if  R.  were  not  bound,  in  law,  to  obey  the  instruc- 
tions given  him  as  to  the  shipping  of  the  goods,  he  would 
still  be  subject  to  the  action  of  G.  for  delivering  the  goods 
to  W.  contrary  to  those  instructions;  thirdly,  that  though 
G.  might  have  recovered  against  W.,  and  the  recovery 
would  have  barred  a  subsequent  suit  against  R.,  yet  G. 
was  not  bound  to  resort  to  W.  But  it  was  also 
[*131]  held,  that  the  action  by  G.  against  *R.  could  not 
be  sustained  without  proof  of  the  loss  of  the 
goods. 

If  the  evidence,  relative  to  the  merits  of  the  action,  be 
contradictory,  and  the  jury  have  an}'  grounds  for  their 
verdict  in  favor  of  the  plaintiff,  a  Court  of  errors  will  not 
reverse  a  judgment  on  the  verdict,  because  a  new  trial 
had  been  refused.  Aliter,  if  there  was  no  evidence  of  a 
fact  essential  to  the  support  of  the  action. 


(151) 


131  SUPREME  COURT  OF  INDIANA. 


King,  Administrator,  v.  Anthony,  Administrator. 


King,  Administrator,  v.  Anthony,  Administrator. 

Judgment — Error  in — Cured — Practice. — Assumpsit  against  an  admin- 
istrator on  promises  of  the  intestate.  Pleas,  non-assumpsit,  the  statute 
of  limitations,  and  plene  administravit.  Judgment  against  the  defend- 
ant de  bonis  propriis.  Held,  that  as  neither  of  the  pleas  was  false  within 
the  defendant's  knowledge,  the  judgment  de  bonis  propriis  was  erroneous  ; 
but  that  as  this  was  only  a  clerical  mistake,  time  would  probably  be  given 
for  its  amendment  below,  were  there  no  other  error  in  the  case  (a). 

Same — Finding — Practice. — In  an  action  against  an  administrator,  if,  on 
the  pleas  of  non-assumpsit  and  plene  administravit,  the  jury  find  for  the 
plaintiff,  they  should  also  find  the  amount  ol  the  assets  in  the  defend- 
ant's hands  unadministered  (6). 

Pleading — Duplicity — Waiver. — If  two  replications  be  filed  to  .one  plea, 
the  defendant  may  demur  specially  for  the  duplicity ;  but  a  rejoinder  to 
the  replications  cures  the  objection. 

Parties — Joint — Judgment. — If  the  plaintiff,  in  an  action  against  two,  pro- 
ceed to  judgment  against-one  alone,  and  the  record  do  not  contain  a  re- 
turn of  the  writ  that  the  other  had  not  been  found,  and  3,  suggestioB  of 
such  a  return,  the  judgment  will  be  reversed  on  error  (c). 

ERROR  to  the  Vanderburg  Circuit  Court. 

Blackford,  J. — Assumpsit  by  tlie  administrator  of  Jon- 
athan Anthony,  against  Thornberry  and  his  wife,  admin- 
istratrix, and  King,  administrator,  of  James  Anthony. 
There  is  no  return  of  the  writ  in  the  record,  nor  a  sug- 
gestion, showing  that  any  of  the  defendants  had  not  been 
found.  King  appeared  and  pleaded,  first,  non-assumpsit; 
secondly,  the  statute  of  limitations;  thirdly,  plene  admin- 
istravit. Issue  was  joined  on  the  first  plea.  To  the  sec- 
ond, there  were  two  replications :  one,  that  fhe  case  was- 
within  an  exception  of  the  statute;  the  other,  denying 
the  plea  generally.  Rejoinder  and  issue  as  to  the  first, 
replication ;  and  an  issue  on  the  second.  To  the  third 
plea  the  plaintiff"  replied  that  the  defendant  had  assets; 
and  on  that,  issue  was  joined.  The  verdict  was  as  fol- 
lows:    "We  of  the  jury  find  for  the  plaintiff'  and  assess. 

(a)  Post,  459.     (b)  5  Blkf.  44.     (c)  Post,  142 ;  8  Blkf.  100 

(152) 


MAY  TERM,  1828.  131-132 

King,  Administrator,  v.  Anthony,  Administrator. 

his  damages  at  1,000  dollars."  A  motion  for  a 
[*132]  *new  trial  was  made  and  overruled,  and  the  fol- 
lowing-judgment rendered :  *'  It  is  on  motion  con- 
sidered by  the  Court,  that  the  plaintiff  recover  the  sum 
aforesaid  by  the  jury  assessed,  with  interest  thereon  till 
paid,  together  with  costs,  &c." 

The  judgment  in  this  case  being  de  bonis  'propriis,  is 
erroneous.  None  of  the  pleas  can  be  considered  false 
within  the  defendant's  own  knowledge,  like  that  of  ne 
unques  executor,  or  a  release  to  the  defendant  (1).  As 
this  is,  however,  only  a  clerical  mistake,  Short  v.  Coffin,  5 
Burr.  2730,  time  would  probably  be  given  for  its  amend- 
ment in  the  Court  below,  were  there  no  other  error  in 
the  case  (2).  But  the  verdict  is  also  erroneous.  On  the 
pleas  of  non-assumpsit  by  the  intestate,  and  plene  admin- 
istravit  by  the  administrator,  the  jury  finding  both  issues 
for  the  plaintiff,  should  have  not  only  assessed  the  dam- 
ages for  the  not  performing  of  the  promises,  but  should 
have»also  found  the  amount  of  the  assets  in  the  hands  of  the 
administrator  unadministered ;  the  administrator  being 
liable  no  further  than  for  the  assets  in  his  hands.  Fair- 
fax's Executor  V.  Fairfax,  5  Cranch,  19;  Siglar,  Admr.  v. 
Haywood,  8  Wheat.  675. 

The  objection  to  the  proceedings,  on  account  of  their 
being  two  replications  to  one  of  the  pleas,  comes  too  late. 
It  is  true,  that  the  statute  of  Anne,  authorizing  double 
pleading,  does  not  extend  to  replications,  1  Chitt.  PI. 
549;  neither  does  ours,  R.  C.  1824,  p.  292.  But  duplicity 
in  pleading  can  only  be  taken  advantage  of  by  special 
demurrer.  1  Chitt.  PI.  513.  In  this  case,  the  defendant 
rejoined  to  both  the  replications;  and  that  put  an  end  to 
his  right  to  the  objection  he  now  makes. 

One  of  the  defendants  in  this  action  appeared  and 
pleaded,  and  the  plaintiff  proceeded  against  him  alone. 
There  is  no  return  of  the  writ  in  the  record,  that  the 
others  had  not  been  found,  nor  any  suggestion  of  such 

(153) 


132-133   SUPREME  COURT  OF  INDIANA. 

Evill  V.  Conwell. 

retura;  both  of  which  were  necessary  to  warrant  this 
proceeding.     R.  C.  1824,  p.  290  (3). 

Per  Curiam. — The  judgment  is  reversed,  &c.  Cause 
remanded,  &c. 

Hall,  for  the  plaintiff". 

Judah,  for  the  defendant. 

(1)  Vide  note  to  Weathers  v.  Newman,  Vol.  1  of  these  Eep.  233. 

(2)  Vide  Songer  v.  Walker,  Vol.  1  of  these  Rep.  251,  and  note. 

(3)  Vide  Morris  v.  Knight,  Vol.  1  of  these  Eep.  106,  and  note.  E.  C 
1831,  V.  400. 


[*133]  *EviLL  V.  Conwell. 

Trespass — Forcible  Entry — Evidence. — A.  removed  from  a  house  and 
lot,  leaving  a  few  articles  in  the  house  and  on  the  lot,  and  fastening  the 
door.  In  the  night  of  the  second  day  afterwards— the  door  being  proved 
to  have  been  still  fast  on  the  evening  of  that  day — B.  entered  into  the 
house  and  put  a  tenant  in  possession,  directing  him  to  prevent  every  per- 
son, and  A.  particularly,  from  taking  possession,  and  threatening  to  beat 
and  prosecute  any  one  who  should  enter  on  the  premises.  There  was  no 
direct  proof,  however,  that  B.  broke  open  the  door.  On  the  complaint  of 
A.  against  B.  for  forcible  entry  and  detainer,  held,  that  the  evidence  would 
justify  a  finding  against  the  defendant  as  to  the  forcible  entry;  and  that 
it  was  clear  against  him  as  to  the  forcible  detainer,  which,  under  the  stat- 
ute, entitled  the  plaintiff  to  restitution  (a). 

ERROR  to  the  Dearborn  Circuit  Court. 

Scott,  J. — Luke  Evill  brought  an  action  of  forcible  en- 
trj^  and  detainer  against  Elias  Conwell,  before  two  justices 
of  the  peace  of  Dearborn  county,  and  had  a  verdict  and 
judgment  in  his  favor;  from  which  Conwell  appealed  to 
the  Dearborn  Circuit  Court.  The  appeal,  by  consent  of 
parties,  was  tried  by  the  Circuit  Court,  without  the  inter- 
vention of  a  jury;  and  on  that  trial  the  judgment  of  the 
Court  was  in  favor  of  Conwell.  To  reverse  that  judg- 
ment is  the  object  of  the  present  writ  of  error. 

(a)  6  Ind.  273. 

(154) 


MAY  TERM,  1828.  133-134 

Evill  I'.  Con  well. 

The  testimony,  as  set  out  in  a  bill  of  exceptions,  is  in 
substance  as  tbllows :  On  the  premises  in  controversy 
there  was  a  dwelling  house  and  garden,  enclosed  with  a 
fence.  On  a  Friday  in  March,  1825,  Evill,  the  plaintift" 
in  error,  left  the  premises  and  moved  his  family  and  fur- 
niture into  a  house  in  the  town  of  Aurora,  leaving  in  the 
house  some  sash  and  a  work  bench,  and  on  the  premises 
a  quantity  of  brick,  lime,  some  garden  stufl:',  and  a  cow. 
The  doors  of  the  dwelling  house  were  shut  and  fastened 
with  latches,  and  the  latches  secured  with  nails  over  them. 
In  this  situation  the  premises  were  seen  on  the  Sunday 
evening  after  the  plaintiff'  left  them.  On  that  night,  after 
dark,  and  after  the  witness  had  undressed  for  bed,  he  was 
called  upon  by  the  defendant  to  go  with  him  to  take  pos- 
session of  the  premises;  and  on  Con  well's  agreeing  to  see 
him  harmless,  the  witness  took  his  wife  and  bed  and  went 
to  the  house  and  found  the  outer  door  open,  by  which  they 

entered  ;  and  Conwell  delivered  possession  to  the 
[*134]    witness  and  gave  him  a  lease  for  three  years,*with 

instructions  not  to  permit  Evill,  or  any  other  per- 
son, to  take  possession  of  the  place ;  and  the  witness  has 
ever  since  that  time  occupied  the  premises  as  tenant  under 
Conwell.  A  day  or  two  afterwards,  persons  sent  by  the 
plaintift^'s  directions  were  turned  away  by  the  tenant. 
One  witness  stated,  that,  while  hunting  his  cattle  for  the 
purpose  of  hauling  away  the  lime,  at  the  plaintift^'s  re- 
quest, from  the  said  premises,  and  before  he  came  to  or 
near  the  place,  he  was  met  by  Conwell,  who,  being  in- 
formed of  his  design,  forbade  his  going  on  the  premises, 
and  threatened  to  beat  and  prosecute  any  person  who 
should  go  upon  them;  in  consequence  of  which  threaten- 
ing the  witness  desisted.  It  was  not  proved  that  Conwell 
was  ever  afterwards  on  the  premises. 

In  this  case,  the  only  doubtful  point  seems  to  be  whether 
Conwell,  in  taking  possession,  made  use  of  such  force  as 
to  lay  him  liable  to  this  action.  There  is  nothing  in  the 
testimony  before  us  amounting  to  positive  proof  that  Con- 

(155) 


134-135    SUPEEME  COURT  OF  INDIA^^A. 

Modisett  v.  The  Governor,  on  the  relation  of  Williams. 

well,  in  making  his  entry,  used  any  actual  violence.  But 
we  think  the  facts  of  his  taking  possession  in  the  dead  of 
night,  and  entering  a  house  which  was,  in  the  evening, 
secured  by  having  a  nail  over  the  latch;  his  directions  to 
his  agent  to  prevent  all  persons,  and  the  plaintift"  in  par- 
ticular, from  getting  possession  ;  and  his  maintaining  that 
possession  with  threats  of  personal  violence;  Avere,  all 
taken  together,  sufficient  to  justify  the  Circuit  Court  in 
finding  a  forcible  entry.  But  even  if  his  entry  by  stealth, 
under  the  shade  of  night,  was  without  force,  our  statute 
gives  this  remedy  where  the  entry  may  have  been  peace- 
able, but  the  possession  maintained  with  force  and  strong 
hand.  The  testimony,  in  this  case,  leaves  no  doubt  of 
Conwell's  maintaining  his  possession  with  threats  and 
strong  hand:  his  agent  on  the  premises  actually  turned 
away  persons  who  were  sent  there  by  Evill ;  and  he  him- 
self threatened  to  beat  any  person  who  should  go  upo>t 
the  land.  For  this  reason  we  think  the  plaintiff  was  er 
titled  to  restitution  (1). 

Per   Curiam. — The  judgment   is    reversed  with    cost? 
Cause  remanded,  &c. 

Dunn,  for  the  plaintiff. 

Stevens  and  Lane,  for  the  defendant. 

(1)  E.  C.  1824,  p.  212.     K.  C.  1831,  p.  265. 


f*135]  ^Modisett  v.   The  Governor,  on   the  relation  of 

Williams. 

Official  Bonds — Liability  of  Surety — Act  of  Officer  in  Satisfying 
Judgment. — If  satisfaction  of  a  judgment  be  cntereil  by  a  justice  of  the 
peace  on  his  docket,  he  and  his  sureties  are  liable  for  the  amount  to  the 
judgment-creditor;  no  matter  for  what  consideration  the  satisfaction  was 
entered,  unless  the  creditor  was  a  party  to  the  arrangement  (o). 

(a)  3  Blkf.  72 ;  4  Id.  129. 

(156) 


MAY  TERxM,  1828.  135-136 


Modisett  r.  The  Governor,  on  the  relation  of  Williams. 


Evidence— Proof  of  Execution  of  Receipt. — In  the  docket  of  justice  A., 
wliieh,  for  some  reason- not  shown,  was  in  justice  B.'s  hands,  there  was  a 
receipt  purporting  to  be  signed  by  B.  of  a  judgment  there  entered  :  Held, 
that  the  receipt  was  not  admissible  as  evidence  against  B.,  without  proof 
of  his  having  executed  it. 

APPEAL  from  the  Vigo  Circuit  Court. 

Holm  AN,  J. — Scire  facias  against  Graham,  a  justice  of 
the  peace,  and  King  and  Modisett  his  sureties ;  charging 
that  Graham,  as  a  justice  of  the  peace,  had  collected  the 
amount  of  several  judgments  entered  in  favor  of  Mark 
Williams  on  the  docket  of  Joel  Downey,  a  late  justice  of 
the  peace,  deposited  with  said  Graham;  and  had  failed 
to  pay  the  money  over  to  the  said  Williams.  Modisett 
pleaded  severally,  that  Graham  had  not  received  the  said 
sums  of  money,  and  neglected  and  failed  to  pay  the  same, 
as  charged  in  the  declaration.  On  which  plea,  the  plain- 
tiff joined  issue.     Verdict  and  judgment  for  the  plaintiff. 

On  the  trial,  as  appears  by  a  bill  of  exceptions,  the  de- 
fendant offered  in  evidence  the  declarations  of  Williams, 
that  Graham  had  never  received  any  money  as  charged 
in  the  declaration ;  and  also  offered  to  prove  that  the 
judgments  of  Williams  against  King,  the  amount  of 
which  the  plaintiff'  claimed  in  this  action,  had  been  en- 
tered satisfied,  not  by  a  payment  in  money,  but  by  King's 
promissory  note.  But  the  Circuit  Court  rejected  this 
evidence;  being  of  opinion  that,  unless  it  was  made  to 
appear  that  a  combination  had  been  entered  into  by 
Williams,  Graham,  and  King,  to  defraud  the  defendant, 
this  evidence  could  not  go  to  the  jury.  This  decision 
was  correct.  When  a  judgment  of  a  justice  of  the  peace 
IS  regularly  entered  satisfied,  the  plaintiff*,  in  order  to 
obtain  his  money,  must  resort  to  the  justice.  He  can  not 
take  out  execution  on  the  judgment  after  satisfaction  is 
entered  on  the  docket,  notwithstanding  he  might 
[*1 36]  know  that  the  satisfaction  had  been  entered  *with- 
out  a  payment  of  the  money.  The  ofiicial  entry 
on  the  docket  is  conclusive  against  the  justice  and  his 


136  SUPREME  COURT  OF  INDIAiS'A. 

Modisett  v.  The  Governor,  on  the  relation  of  Williams. 

sureties,  and  the  plaiiititt'  has  a  right  of  action  against 
them  for  his  money,  without  any  reference  to  the  man- 
ner in  which  the  judgment  has  been  satisiied.  If  Wil- 
Haras  had  assented  to  such  a  discharge  of  his  judgment, 
or  had  in  anj^  way  comljined  witli  Graham  or  King,  for 
the  purpose  of  rendering  Modisett  hable  for  the  amount 
of  the  judgments,  such  facts  might  have  been  shown  in 
the  defence.  But  the  evidence  here  offered  goes  only  to 
the  knowledge  of  Williams  that  no  money  was  paid,  and 
does  not  pretend  to  show  that  he  assented  to,  or  was  in 
any  way  concerned  in,  the  transaction.  The  evidence 
was  therefore  properly  rejected. 

Another  bill  of  exceptions  states,  that  the  plaintiff 
offered  in  evidence,  to  support  the  issue  on  his  part,  a 
paper  reputed  to  be  the  docket  of  justice  Downey,  appear- 
ing to  be  signed  by  said  Downey  as  such  justice,  and  con- 
taining certain  reputed  receipts  of  justice  Graham;  after 
having  only  proved  that  the  said  docket,  in  the  possession 
of  said  Graham,  appeared  to  be  signed  by  said  Graham, 
as  such  justice;  without  having  proved  any  license  to 
intermeddle  with  the  judgments  upon  said  docket,  ac- 
cording to  the  act  of  assembly  in  such  case  made  and 
provided,  or  any  other  authority;  and  without  having 
proved  that  Graham  wrote  said  receipts,  or  that  the  same 
were  in  his  hand-writing.  To  the  admission  of  which 
paper  in  evidence,  the  defendant  objected;  but  the  Cir- 
cuit Court  overruled  the  objection,  and  permitted  it  to 
go  as  evidence  to  the  jury.  These  reputed  receipts  of 
Graham  were  not  admissible  as  evidence  without  proof 
of  their  execution.  And  we  consider  the  expressions  in 
this  bill  of  exceptions,  though  somewhat  obscure,  as 
showing  that  there  was  no  proof  of  their  execution.  The 
language  of  the  bill  is  that  they  were  admitted  in  evi- 
dence, witliout  any  proof  that  they  were  written  by  Gra- 
ham, or  were  in  his  hand-writing.  Their  being  on  a 
paper,  reputed  to  be  the  docket  of  another  justice  of  the 
peace,  which  was  found  in  Graham's  possession,  can  not 

(158) 


MAY  TERM,  1828.  136-1;  ( 


Lambert  i'.  Sandford. 


alter  their  character,  unless  it  was  shown  that  Graham 
had  authority  to  intermeddle  with  the  judgments  on  that 
docket;  and  as  it  is  said  that  no  such  authority  was 
shown,  the  receipts  must  stand  as  if  they  were  on  any 
other  paper;  and  their  execution  should  have 
[*137]  been  proved  before  ^'they  were  admitted  as  evi- 
dence. The  Circuit  Court  therefore,  acted  incor- 
rectly in  admitting  this  reputed  docket,  containing  these 
reputed  receipts,  to  go  in  evidence  to  the  jury. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 
Tabbs,  for  the  appellant. 


Deicey,  for  the  appellee. 


Lambert  v.  Sandford. 

Ees  Adjudicata — Nolle  Prosequi. — A  nolle  prosequi  to  the  whole  declar- 
ation has  the  effect,  not  of  a  retraxit,  but  of  a  discontinuance ;  and  is  no 
bar  to  a  subsequent  suit  for  the  same  cause. 

Attorney — Authority  of. — An  attorney  at  law  has  no  authority  to  enter 
a  retraxit;  that  being  a  perpetual  bar. 

Practice — Reversal. — A  judgment  will  not  be  reversed  because  a  motion 
for  a  new  trial,  made  on  the  ground  of  a  verdict's  being  contrary  to  evi- 
dence, has  been  overruled  ;  unless  it  be  clear  that  the  verdict  is  not  war- 
ranted by  the  evidence  (a). 

Bill  of  Exchanc4E— Extension  of  Time — Eelease. — If  the  payee  of  a 
bill  of  exchange,  accepted  for  the  drawer's  accommodation,  give  time  to 
the  drawer  without  the  acceptor's  knowledge,  the  latter  is  not  thereby 
discharged  ;  though  the  payee  knew  that  the  acceptance  was  made  for 
the  drawer's  accommodation  (6). 

ERROR  to  the  Vigo  Circuit  Court. 

Blackford,  J. — Sandford,  as  the  indorsee  of  Boudinot, 
brought  this  action  of  assumpsit  against  Lambert,  as,  the 
acceptor  of  a  bill  of  exchange,  drawn   by  Hamilton   in 

(a)  35  Ind.  356;  37  Id.  361. 

(b)  7  Blkf.  363;  35  Ind.  304;  55  Id.  45;  43  Id.  163;  51  Id.  124. 

(159) 


137-138     SUPKEME  COUKT  OF  INDIANA. 

Lambert  v.  Sandford. 

favor  of  Boudinot,  cashier.  The  defendant,  Lambert, 
pleaded,  iirst,  non-assumpsit;  on  which  issue  was  joined. 
He  pleaded,  secondly,  that  the  bill  became  the  property 
of  the- bank  of  Vincennes  by  the  blank  endorsement  of 
Boudinot,  cashier,  and  his  delivery  thereof  to  the  bank; 
that  the  bank,  owners  of  the  bill,  sued  the  defendant, 
Lambert,  thereon  ;  and  after  service  of  the  writ,  and  after 
the  defendant  had  pleaded,  the  parties  appeared  by  their 
attorneys,  and  the  plainiiiFs  would  not  further  prosecute 
their  suit,  therefore  it  was  considered  that  the  plaintiffs 
should  take  nothing  by  their  writ,  but  be  in  mercy,  &c., 
and  that  the  defendant  should  go  thereof  without  day. 
To  this  plea,  there  was  a  general  demurrer,  and  judgment 
for  the  plaintifl".  The  defendant  pleaded,  thirdly,  that  on 
the  first  of  July,  1822,  the  charter  of  the  bank  of  Vin- 
cennes became  forfeited,  and  its  franchises  were 
[*138]  seized  by  the  state ;  and  that,  at  the  time  *of  the 
forfeiture  and  seizure,  the  bill  belonged  to  the 
bank.  To  this  plea  the  plaintiff  replied  that,  at  the  time 
of  the  seiz,ure,  the  property  of  the  bill  was  not  in  the 
bank.     On  this  replication  issue  was  joined. 

On  the  trial  of  the  issues,  the  defendant  offered  to  prove 
that  he  accepted  the  bill  for  the  accommodation  of  the 
drawer,  which  was  known  at  the  bank  when  the  bill  was 
discounted ;  that  after  tlie  bill  became  due,  the  bank  stop- 
ped the  drawer  at  yincennes,  on  his  way  down  the  river, 
in  May,  1821,  in  consequence  of  the  non-payment  of  the 
bill,  and  then  agreed  to  give  him  three  months  for  pay- 
ment from  the  time  the  bill  became  due,  on  his  paying 
the  discount;  that  the  discount  was  paid,  and  the  credit 
given,  without  the  knowledge  of  the  defendant ;  and  that 
the  drawer  was,  at  the  time  of  this  arrangement,  able  to 
pay.  This  testimony  was  objected  to,  and  the  objection 
sustained. 

At  the  trial  it  was  admitted,  that  the  franchises  of  the 
bank  were  seized  on  the  first  of  July,  1822.  The  plain- 
tiff proved  the  signatures  of  the  acceptor,  endorser,  and 

(160) 


MAY  TERM,  1S28.  138-139 

Lambert  v.  Sandford. 

drawer.  He  proved  that  on  the  8th  of  February,  1822, 
Hart,  as  attorney  of  Sandford,  the  plaintiff,  gave  notice 
to  the  defendant,  that  the  bank  had  assigned  the  bill  to 
Sandford.  He  proved  that  Tabbs,  as  attorney  of  the  bank, 
in  the  fall  of  1821,  or  winter  of  1822,  had  Hied  a  declara- 
tion against  Lambert  on  the  bill;  that  the  bill,  when  de- 
livered to  him,  belonged  to  the  bank;  that  shortly  after 
the  commencement  of  the  suit  for  the  bank,  it  was  con- 
ducted by  him  and  Hart  under  the  impression  that  the 
propert}'  was  in  Sandford  ;  that  from  the  spring  or  win- 
ter of  1822,  he  considered  the  bill  as  the  property  and 
under  the  control  of  Sandford;  that  the  bill  was  always 
in  Tabbs'  possession  from  its  deliver}^  to  him  until  it  was 
filed  in  the  papers  of  the  suit;  that  Sandford  never  had 
actual  possession  of  the  bill;  that  Tabbs  had  only  been 
attorney  for  Sandford,  as  to  this  bill,  since  Hart's  death 
in  December,  1822;  that  the  endorsement  on  the  bill, 
"  Pay  to  Isaac  Sandford  or  to  his  order,"  was  made  at  the 
April  term,  1825 ;  that  Tabbs'  receipt  to  the  bank  for  col- 
lection had  been  returned  to  him ;  and  that  the  suit  of 
the  bank  against  the  defendant  was  dismissed  at  the  Oc- 
tober term,  1824. 

This  was  all  the  evidence  in  the  cause.     The  jury  gave 

a  verdict  for  the  plaintiiF  for  1,020  dollars  in  dam- 

[*139]    ages;    a  motion  for  *a  new  trial  was  made  and 

overruled;  and  judgment  rendered  according  to 

the  verdict. 

The  plaintiff  in  error  relies  upon  three  grounds  for  the 
reversal  of  the  judgment:  1st,  that  the  second  plea  was 
a  good  bar,  and  the  demurrer  to  it  should  not  have  been 
sustained  ;  2d,  that  the  Court  should  have  granted  a  new 
trial,  the  plaintiff  below  having  failed  to  prove  any  prop- 
erty in  the  bill;  3d,  that  the  evidence  offered  as  to  the 
discharge  of  the  defendant,  on  account  of  time  given  to 
the  drawer,  should  have  been  admitted. 

As  to  the  first  objection,  assuming  that  the  suit  of  the 
bank  was  disposed  of  by  a  7ioUe  prosequi,  which  is  the  most 
YoL.  II.— 11  (161) 


139-140   SUPREME  COUHT  OF  INDIANA. 

Lambert  v.  Sandforci. 

that  the  plaintiff  in  error  contends  for,  we  think  the  laAV 
is  against  him.  It  has  been  held  that  a  Jiolle  prosequi  can 
not  be  distinguished  in  reason  from  a  discontinuance,  for, 
in  either,  the  party  may  after\A\ards  commence  another 
action  for  the  same  cause.  Cooper  v.  Tijfin,  3  T.  R.  511. 
And  in  a  late  valuable  book  on  practice,  one  of  the 
grounds  on  which  a  nolle  prosequi  to  the  whole  declaration 
is  distinguished  from  a  retraxit  is,  that  the  former  is  not 
a  bar  to  a  future  action  for  the  same  cause.  2  Arch.  Prac. 
250.  Besides,  the  plea  states  this  disposition  of  the  cause 
to  have  been  made  by  the  attorney;  who  had  no  author- 
ity to  enter  a  retraxit,  because  that  is  a  perpetual  bar. 
Kellogg  v.  Gilbert,  10  Johns.  R.  220.  If  a  nolle  prosequi, 
therefore,  when  made  in  person,  were  a  bar  to  another 
suit,  it  would  not  be  so  in  this  case,  the  entry  here  being 
by  attorney. 

The  second  objection  is  not  more  substantial  than  the 
first.  It  is  true,  that  the  evidence  is  not  clear,  as  to 
whether  the  property  of  the  bill  was  in  Sandford,  or  in 
the  bank,  a{  the  tfime  the  franchises  of  the  corporation 
were  seized.  ,The  endorsement  of  Boudinot,  the  payee, 
was  in  blank.  The  gentleman  who  had  the  bill,  and  was 
the  attorney  for  the  bank,  considered  it,  for  a  consider- 
able time  before  the  seizure,  as  the  property  of  Sandford, 
and  under  his  control.  His  reasons  for  so  considering  it, 
are  not  stated.  If  the  defendant  below  supposed  them 
insufficient,  he  should  have  inquired  what  they  were. 
The  jury  to  whom  the  question  was  submitted,  after 
hearing  a  variety  of  testimony,  have  determined  it  in 
favor  of  the  plaintiff  below,  and  the  Court  in  which  it 
was  tried  has  refused  to  disturb  the  verdict.  Con- 
[*140]  sidering  the  point,  as  we  do,  a  doubtful  one,  *it 
becomes  us,  as  an  appellate  Court,  to  let  it  rest 
where  it  is. 

The  third  objection  is  one  of  more  difficulty.  A  bill  is 
accepted  for  the  drawer's  accommodation  ;  and  a  bank, 
knowing  that,  discounts  it  for  the  drawer.     The  bill  be- 

(162) 


MAY  TERM,  1828.  140 

Lambert  ;.  Sandford. 

comes  due,  and  the  bank  gives  the  drawer  an  additional 
credit,  without  the  knowledge'  of  the  acceptor.  The 
question  is,  does  this  indulgence  to  the  drawer  discharge 
the  acceptor,  as  to  a  holder  who  received  the  bill  after  it 
became  due?  The  plaintiii'  in  error  contends,  that  the 
acceptor  here  is  only  a  surety,  and  refers  to  a  case  in 
Hardress,  485.  Should  that  case  be  thought  to  bear  upon 
this,  it  is  answered  by  Raborg  v.  Peyton,  2  Wheat.  385, 
which  expressly  overrules  it.  Indeed,  without  going  fur- 
ther, this  latter  decision  settles  the  point,  that  the  accept- 
or, whether  for  the  drawer's  accommodation  or  not,  is  a 
principal,  and  not  a  surety,  as  to  the  payee.  The  Court 
says,  that,  ^^  prima  facie,  every  acceptance  affords  a  pre- 
sumption of  funds  of  the  drawer  in  the  hands  of  the  ac- 
ceptor ;  and  is,  of  itself,  an  express  appropriation  of  those 
funds  for  the  use  of  the  holder.  The  case  may,  indeed, 
be  otherwise;  and  then  the  acceptor,  in  fact,  pays  the 
debt  of  the  drawer ;  but  as  between  himself  and  the  payee 
it  is  not  a  collateral,  but  an  original  and  direct  undertak- 
ing. The  payee  accepts  the  acceptor  as  his  debtor,  and 
he  can  not  resort  to  the  drawer  but  upon  a  failure  of  due 
payment  of  the  bill."  In  the  case  before  us,  the  bank 
lent  the  money  to  Hamilton  upon  the  security  of  this  bill ; 
that  Lambert  should  be  the  acceptor,  and  therefore  liable 
as  the  principal,  was  the  consideration  of  the  loan.  Had 
it  been  otherwise,  it  is  fair  to  presume  that  Hamilton 
would  have  been  the  acceptor.  The  bank's  knowledge 
that  the  acceptance  was  for  the  drawer's  accommodation, 
is  not  considered  material ;  for  it  was  not,  in  our  opinion, 
essential  to  the  validity  of  the  bill,  or  to  its  legal  effect 
according  to  its  face,  as  respected  the  payee,  that  the  ac- 
ceptor should  be  benefited  by  the  consideration.  In  this 
view  of  the  subject,  the  time  given  to  Hamilton,  can  not 
affect  the  responsibility  of  Lambert,  the  principal  in  the 
contract.  He  was  liable  to  a  suit  on  his  acceptance  at 
any  time  after  the  bill  became  due,  and  could  derive  no 
benefit,  not  even  of  delay,  from  the  bank's  arrangement 

(163) 


140-141    SUPREME  COURT  OF  INDIAXA. 

Peck  and  Others  v.  Brnman  and  Others,  in  Error. 

with  the  drawer  for  time,     !N  either  could  the  indul^-ence 
to  the  drawer  operate  to  the  injury  of  the  acceptor;    for 

if  before  the  expiration  of  tlie  time  given,  Lani- 
[*141]    bert  had  been  *conipelled  to  pa}',  his  remedy  over 

against  Hamilton  would  not  have  been  retarded 
by  the  arrangement  between  the  latter  and  the  bank,  with 
which  Lambert  had  no  concern,  and  by  which  he  could 
not  be  bound.  As  to  this  third  ground  relied  on  by  the 
plaintiff  in  error,  his  strong  authority  is  Laxton  v.  Peak, 
2  Campb.  N.  P.  185.  That  case,  however,  is  contradicted 
b}'  the  subsequent  one  oi  Fentam  v.  Pocock,  5  Taunt.  192, 
cited  by  the  defendant  in  error.  The  latter  is  in  accord- 
ance with  our  ideas  of  the  law  (1). 

Per  Curiam. — The  judgment  is  affirmed  with  1  per  cent. 
damages  and  costs.    " 

Judah  and  Dewey.,  for  the  plaintiff. 
Tabbs,  for  the  defendant. 

(1)  Vide  on  this  subject,  Kerrison  v.  Cooke,  3  Campb.  362 ;  Adams  v.  Gregg, 
2  Stark.  R.  531  ;  Hilly.  Read,  D.  &  R.  26.  The  drawer  is  not  discharged  by 
the  giving  of  time  to  the  accommodation  acceptor.  Collet  v.  Haigh,  3  Campb. 
281.  Nor,  if  t'.ie  acceptor  be  the  agent  of  the  drawer,  is  the  latter  dis- 
charged by  time  given  to  tlie  former.  Clarke  v.  Noel,  Id.  411.  In  a  very 
late  case,  Parke,  J.,  says :  "  I  tliink  that  the  decision  in  Fentum  v.  Pocock, 
where  it  was  held  that  the  acceptor  of  an  accommodation  bill  was  not  dis- 
charged by  giving  time  to  the  drawer,  is  good  sense  and  good  law."  Price 
V.  Edmunds,  10  Barn.  &  Cress.  578. 


Peck  and  Others  v.  Braman  and  Others,  in  Error. 
Infants-Right  to  Compel  Guardian  to  Account  (a). 

AN  infant,  after  his  guardian's  death,  has  a  right  to 
compel  a  settlement  of  his  accounts  as  if  he  were  of  age  ; 
the  guardian's  trust  being  personal,  and  terminating  at 
his  death.     Bac.  Abr.  tit.  Guardian. 

In  the  case  of  a  guardianship  until  the  ward  is  of  full 
age,  the  general  rule  is,  that  the  ward  must  be  of  age  be- 

(a)  8  Blkf.  15 ;  15  Ind.  230. 

(164) 


MAY  TERM,  1828.  141-142 


Peck  and  Others  v.  Bra  man  and  Others,  in  Error. 


fore  he  can  require  his  guardian  to  account;  yet. in  chan- 
cery, a  ward  may,  during  his  minority,  call  such  a  guard- 
ian to  account,  if  anything  should  occur  which  makes  it 
necessary.     lb. 

The  guardianship  of  minors,  and  the  adjustment  of 
their  accounts,  form  a  conspicuous  branch  of  chancery 
jurisdiction.  lb.  2  Fonb.  Eq.  225—251 ;  Beaufort  v.  Berty, 
1  Peere  Wms.  702;  1  Bl.  Comm.  463. 

The  extension  of  the  jurisdiction  of  Courts  of 
[*142]    law,  in  modern  *times,  to  cases  which  were  form- 
erly subjects  of  equitable  jurisdiction  only  has  not 
destroyed  the  jurisdiction  of  Courts  of  equity.     Kemp  v. 
Pryo)\  7  Ves.  249. 

"When  accounts  are  intricate  and  difficult,  a  bill  in 
equity  is  the  more  usual  and  suitable  proceeding  to  com- 
pel an  account;  being  best  calculated  to  do  justice  be- 
tween the  parties;  since  the  plaintiff'  can  thereby  obtain 
a  discovery  of  books  and  papers,  and  have  the  benefit  of 
the  defendant's  oath;  who,  on  the  other  hand,  is  entitled 
to  all  both  legal  and  equitable  allowances.  Paley  on 
Agency,  57. 

The  heirs  of  A.,  some  of  whom  were  infants,  and  his 
representatives,  tiled  a  bill  in  chancery  against  the  heirs 
and  representatives  of  B.  The  bill  stated  that  B.,  the 
guardian  of  A.'s  heirs,  having  contracted  to  sell  their 
knd  to  C,  procured  an  order  of  the  Court  in  Connec- 
ticut, where  the  land  was  situated,  authorizing  its  sale  by 
D. ;  that  D.,  pursuant  to  the  order,  sold  and  conveyed 
the  land  to  C.  for  1,500  dollars,  which  amount  had  neariy 
all  been  received  by  B. ;  that  bonds  to  the  Court  were 
executed  by  D.  and  E.,  conditioned  that  B.  should  vest 
the  purchase-money  in  other  land  for  the  heirs  of  A.,  or 
lay  it  out  for  their  nurture,  education,  or  advancement, 
and  should  account  to  the  Court  when  required,  or  to  the 
heirs  when  they  should  come  of  age:  that  B  having  mar- 
ried the  widow  and  administratrix  of  A.,  became  possessed 
of  the  intestate's  personal  estate  to  a  considerable  amount: 

(165) 


142-143   SUPREME  COURT  OF  I^nDIANA. 

Thompson  and  Others  v.  The  Governor,  in  Error. 

that  B.  afterwards  removed  from  Connecticut  to  Indiana, 
purchased  land  here  witli  the  money  of  A.'s  heirs  re- 
ceived as  aforesaid,  took  the  title  in  his  own  name,  and 
died  without  accounting  to  them,  or  leaving  personal 
property  sufficient  to  pay  their  claim.  The  bill  prayed 
for  a  discovery,  relief,  &c. 

Held^  that  a  demurrer  to  the  bill,  on  the  ground  of  the 
complainant's  remedy  being  at  law,  could  not  be  sus- 
tained ;  the  case  being  within  the  jurisdiction  of  a  Court 
of  chancery. 


Thompson  and  Others  v.  The  Governor,  in  Error. 

Joint  Parties — Eelease  of  One. 

IF  a  suit  be  brought  on  a  collector's  bond  against  the 
principal  and  sureties,  it  is  error  to  take  judgment 
[*143]  against  the  *sureties  alone,  without  a  suggestion 
on  the  record  of  the  sheriffs  return  to  the  writ  of 
"  non  est  inventus"  as  to  the  principal.  R.  C.  1824,  p. 
290 ;  Morris  v.  Knight,  1  Blackf.  106 ;  Colman  v.  Graeter, 
id.  388.     See  1  Saund.  p.  207,  n.'  2,  p.  291,  n.  4  (1). 

(1)   King  V.  Anthony,  ante,  p.  131,  R.  C.  1831,  p.  400. 


Blackwell  v.  The  Board  of  Justices  of  Lawrence  County. 

County— Public  Corporation— Power  to  Contract.— A  statute  author- 
ized the  re-location  of  the  seat  of  justice  in  a  county,  and  gave  to  the 
owners  of  lots  in  the  old  town,  after  the  re-!ocation.  on  their  coniplvin? 
with  certain  conditions,  a  right  to  a  conveyance  by  the  county  agent  of 
certain  lots  in  the  new  town  in  exchange  for  theirs  in  the  old  one.  The 
county  accepted  the  statute,  and  the  seat  of  justice  wa.s  removed.  TTeW, 
that  the  owner  of  a  lot  in  the  old  town,  having  performed  the  precedent 
conditions  prescribed  by  the  statute,  and  demanded  of  the  county  agent 
a  conveyance  for  the  proper  lot  in  the  new  town,  might,  if  the  title  were 
refused,  maintain  an  action  of  assumpsit  against  the  Board  of  Justices 
for  a  breach  of  their  contract,  implied  from  the  county's  acceptance  of 
the  statute  [n). 

(a)  4  Blkf.  208. 

(106) 


MAY  TERM,  1828.  143-144 

Blackwell  v.  The  Board  of  Justices  of  Lawrence  County. 

Same — Assumpsit.— /feW,  also,  that  if  the  important  facts,  showing  the 
cause  of  action,  were  correctly  set  out,  the  declaration  could  not  be  ob- 
jected to  on  general  demurrer  on  account  of  its  improper  conclui^ion,  that 
the  plaintiff  ought  to  recover  the  value  of  the  lot  in  the  new  town. 

Same — Assumpsit — Consideration. — Held,  also,  that  the  value  of  the  lot 
in  the  old  town,  at  a  reasonable  time  before  the  passage  of  the  statute  for 
the  re-location,  was  the  real  consideration  that  passed  from  the  plaintiff 
for  the  lot  in  the  new  town ;   which  consideration,  with  interest  from  the 

•  time  the  lot  in  the  old  town  was  relinquished  to  the  county,  was,  in  this 
case,  the  measure  of  damages. 

Same — May  be  Sued. — The  Board  of  Justices  may  be  sued,  in  their  cor- 
porate capacity,  for  any  legal  demand  against  the  county. 

Same — Removal  of  County  Seat. — A  seat  of  justice  may  be  removed  by 
statute,  on  such  terms  as  the  legislature  deems  reasonable ;  and  the 
county,  having  accepted  and  acted  on  the  statute,  is  bound  to  comply 
with  the  terms  imposed  on  it  by  the  statute. 

Pleading — Surplusage. — Whatever  comes  under  a  videlicet,  if  inconsist- 
ent with  the  precedent  matter,  may  be  rejected  as  surplusage. 

Damages — Breach  of  Covenant. — On  a  covenant  to  convey  real  estate, 
as  on  a  covenant  of  seisin,  the  measure  of  damages  is,  in  the  absence  of 
fraud,  the  purchase-money  and  interest  (6). 

Quaere,  whether  on  the  covenant  of  warranty,  the  value  of  the  land  at  the 
time  of  eviction,  or  the  purchase-money  with  interest,  is  the  measure  of 
damages. 

ERROR  to  the  Lawrence  Circuit  Court. — x4.ssumpsit  by 
Blackwell  against  The  Board  of  Justices  of  Lawrence 
county.  General  demurrer  to  the  declaration,  and  judg- 
ment for  the  defendant. 

HoLMAN,  J. — The  first  count  in  the  declaration  states, 
that  by  a  certain  act  of  the  general  assembly  of 
'[*144]  the  state  of  Luliana,  ^entitled  an  act  appointing 
commissioners  to  re-locate  the  seat  of  justice  of 
Lawrence  county,  approved  the  9th  of  February,  1825, 
certain  commissioners  were  appointed  to  meet  on  the 
second  Monda}'  in  March,  1825,  and  re-locate  said  seat 
•of  justice  with  authority  to  procure  a  tract  of  land,  on 
which  to  lay  off  a  town,  &c. ;  that  the  act  provided  that 
the  agent  of  the  county  should  lay  oft'  a  town  on  said 
tract  of  land,  similar,  as  nearly  as  might  be,  to  the  town 
of  Palestine,  the  former  seat  of  justice,  and  with  a  cor- 

(6)  Post,  274;  7  Ind.  450;  20  Id.  87. 

(167) 


144-145   SUPREME  COURT  OF  IXDIA:N'A. 

Blackwell  v.  The  Board  of  Justices  of  Lawrence  County. 

responding  number  of  lots;  that  any  person,  who  had 
purchased  and  paid  for  any  lot  or  lots  in  the  town  of 
Palestine,  should  have  the  privilege  of  exchanging  the 
same  for  lots  correspondingly  situated  and  numbered  in 
the  new  town,  by  tiling  and  acknowledging,  before  the 
recorder  of  the  county,  an  application  for  such  exchange, 
which  should  be  entered  of  record  by  said  recorder,  and 
have  the  effect  of  a  release  of  all  the  rig-ht  and  title  of  the 
applicant  to  the  lot  or  lots  in  Palestine;  and  that  it 
should  be  the  duty  of  the  agent  of  the  county,  on  being 
presented  with  the  recorder's  certificate  of  the  relinquish- 
ment and  application,  to  give  the  applicant  a  deed  for 
the  lot  or  lots  in  the  new  town,  which  should  correspond 
in  number  with  the  lot  or  lots  so  relinquished;  provided 
the  application  for  the  exchange  should  be  made  within 
twelve  months  after  said  re-location.  And  the  plaintiff 
avers,  that  the  commissioners  so  appointed,  did  meet  on 
the  second  Monday  in  March,  1825,  and  did  procure  a 
tract  of  land  &c.,  and  re-locate  the  seat  of  justice  for  said 
county  thereon;  that  the  agent  of  the  county  did  lay  off 
a  town,  &c.,  which  is  known  by  the  name  of  Bedford,  on 
a  plan,  similar  as  nearly  as  might  be  to  the  plan  of  Pal- 
estine, and  with  a  corresponding  number  of  lots;  that  the 
plaintiff,  having  purchased  and  paid  for  fractional  lots 
numbered  35  and  36,  and  lot  numbered  244,  in  the  town 
of  Palestine,  for  the  sum  of  500  dollars,  and  being 
thereof  the  lawful  owner,  did,  within  twelve  months 
after  the  said  re-location,  to  wit,  on  the  18th  of  March,. 
1826,  apply  for  the  exchange  of  said  lots  for  others  cor- 
respondingly situated  in  the  town  of  Bedford,  bv  filing 
and  acknowledging  an  application  for  said  exchange  be- 
fore the  recorder  of  said  county,  which  application  was 
entered  of  record  by  said  recorder,  who  certified  that  such 
relinquishment  was  made,  and  that  the  plaintiff  claimed 

in  lieu  thereof  lots    corresjtondingly  situated  m 
[*145]    Bedford;  that  the  plaintiff  on  the  '-^Pth  of  June, 

1826,  presented  the  said  certificate  to  the  ao-entof 
(168) 


MAY  TERM,  1828.  146 

Black  well  v.  The  Board  of  Justices  of  Lawrence  County. 

said  county,  and  demanded  of  him  a  deed  for  said  lots  in 
Bedford;  and  that  said  agent  refused  and  still  does  refuse 
to  give  any  deed  for  those  lots.  The  plaintiff  in  fact  says 
that  the  county  of  Lawrence  has  not,  nor  ever  had,  any 
title  to  the  said  lots  in  the  town  of  Bedford;  that  the 
said  agent  could  not,  and  can  not,  make  any  deed  for  the 
same ;  and  that,  by  reason  of  the  premises,  the  county  of 
Lawrence  is  indebted  to  him  in  the  sum  of  500  dollars, 
and  being  so  indebted,  then  and  there  undertook  and 
promised  to  pay  him  the  same  whenever  thereto  required. 

The  second  count  states,  that  whereas  the  county  of 
Lawrence  was  indebted  to  the  plaintiff  in  the  further  sum 
of  500  dollars,  for  so  much  money  before  that  time  had 
and  received  of  the  said  plaintiff,  by  the  said  county  at 
its  request,  for  the  use  and  benefit  of  the  said  plaintiff; 
and  being  so  indebted  promised  to  pay,  &c. 

A  third  count  in  an  amended  declaration,  states  that 
the  said  defendants,  in  consideration  of  the  premises 
aforesaid,  then  and  there  undertook  and  faithfully  prom- 
ised to  pay  the  said  plaintiff',  so  much  money  as  the  said 
lots  in  the  said  town  of  Bedford  were  reasonably  worth, 
whenever  they  should  be  thereto  required  ;  and  that  the 
said  lots  in  Bedford  were  worth  500  dollars.  Breach, 
non-payment. 

Demurrer  and  judgment  for  the  defendants. 

The  two  first  counts  it  is  said  are  bad,  because  they  rest 
on  a  promise  and  undertaking  by  the  county  of  Law- 
rence;  when,  it  is  contended,  a  county,  eo  nomine,  has  no 
power  to  contract,  and  can  not  be  charged  in  an  action 
at  law.  There  is  much  weight  in  this  objection;  but  as 
it  is  not  applicable  to  the  tliird  count,  we  deem  its  inves- 
tigatiiMi  unnecessary. 

The  third  count  charges  that  the  defendants,  the  board 
of  justices  of  Lawrence  county,  in  consideration  of  the 
premises,  promised  to  pay,  &c.  That  the  board  of  jus- 
tices may  be  sued  for  any  legal  demand  against  the 
county,  is  settled  by  tlie  act  of  assembly  by  which  the 


145-146   SUPREME  COURT  OF  INDIAXA. 

Blackwell  v.  The  Board  of  Justices  of  Lawrence  County. 

board  was  organized.  R.  C.  1824,  p.  86.  It  is  necessary, 
then,  to  inquire  whether  the  plaintift'  has  made  out  such 
a  demand  as  can  be  etifored  against  the  board  of  jus- 
tices. That  tliis  is  a  case  of  assumpsit  is  no  valid  .objec- 
tion. If  there  were  any  room  to  doubt,  wIj ether, 
[*146]  on  general  ^principles,  the  board  of  justices,  as  a 
corporation,  are  liable  to  an  action  of  assumpsit, 
that  doubt  is  entirely  removed  by  the  act  of  assembly 
organizing  the  board.  That  act  provides,  that  in  all 
cases  where  any  perso'n  now  has,  or  hereafter  may  have, 
any  claim  of  any  name  or  nature  against  any  county,  suit 
may  be  brought  therefor,  in  any  Court  of  law  or  equity, 
against  such  board  of  justices  in  their  corporate  capacity, 
and  judgment  and  execution  be  had  thereon  as  in  other 
cases.  The  words  here  used,  as  to  the  claims  that  may 
be  enforced  against  the  board  of  justices,  as  the  represent- 
atives of  the  county,  are  comprehensive,  and  include  all 
such  claims  as  can  be  sued  for  in  actions  of  assumpsit 
onl3\  No  exception  can,  therefore,  be  taken  to  the  form 
of  the  action. 

But  the  plaintiff's  claim  is  certainly  peculiar.  It  arises 
under  the  conditions  imposed  by  the  legislature,  in  the 
act  authorizing  the  re-location  of  the  seat  of  justice  of 
Lawrence  county.  The  removal  of  a  seat  of  justice  is  a 
subject  of  legislative  discretion  ;  and  the  legislature,  in 
the  exercise  of  this  discretion,  may  impose  such  terms  on 
the  county  as  are  deemed  equitable:  and,  when  the  act 
of  assembly  has  been  accepted  and  acted  under,  as  in 
this  case,  by  the  constituted  authorities  of  the  county,  all 
the  conditions  and  provisions  in  the  act  are  obligatory  on 
the  county.  The  county  of  Lawrence,  by  accepting  this 
act  of  assembly,  so  far  as  it  establishes  the  town  of  Bed- 
ford as  its  seat  of  justice  has,  by  its  proper  agents,  agreed 
by  implication  to.  perform  all  the  conditions  consequent 
upon  that  event'.  Tliose  conditions  have,  therefore,  be- 
'';ome  as  obligatory  upon  the  county,  as  if  they  were  the 

(170) 


MAY  TERM,  1828.  146-147 

Blackwell  v.  The  Board  of  Justices  of  Lawrence  County. 

express  stipulations  of  its  constituted  authorities.     They 
form  a  valid  contract  on  a  valuable  consideration. 

Considering  the  proceedings  under  the  act  of  assembly, 
as  amounting  to  an  implied  contract  by  the  board  of  jus- 
tices, as  the  corporate  organs  of  the  county,  with  the 
plaintitf,  that  if  he  would,  in  a  given  time  and  specitied 
manner,  relinquish  his  lots  in  Palestine,  they,  through  the 
agent  of  the  county,  would  make  him  a  deed  for  the  lots 
similarly  situated  and  numbered  in  Bedford, — there  can 
be  no  doubt  but  that  the  plaintiff,  if  he  has  complied  with 
the  precedent  conditions,  is  entitled  to  a  deed  for  the  lots 
in  Bedford;  and  that  a  refusal  on  the  part  of  the  county 

agent  to  make  him  the  deed,  completes  his  right 
[*147]    of  ^action  against  the  defendants.     Performance 

of  all  these  conditions  is  averred  in  the  declara- 
tion. It  may  be  proper  however  to  remark,  that  one  pro- 
vision in  the  act  of  assembly  requires,  that  the  applica- 
tion for  the  exchange  of  lots  should  be  within  twelve 
months  of  the  re-location  of  the  seat  of  justice.  The 
commissioners,  it  is  said,  met  for  the  purpose  of  re-locat- 
ing the  seat  of  justice  on  the  second  Monday  in  March, 
1825,  and  did  re-locate,  &c.  The  whole  business  would 
seem  to  have  been  transacted  on  that  day.  And  the  plain- 
tiff avers  that  he  applied  for  the  exchange  of  lots,  within 
twelve  months  of  the  re-location  ;  to  wit,  on  the  18th  of 
March,  1826.  The  date  of  the  application  here  given,  is 
more  than  twelve  months  after  the  meeting  of  the  com- 
missioners for  the  re-location.  It  is  inconsistent  with  the 
preceding  averment,  and  being  under  a  videlicet  must  be 
rejected.  So  that  taking  the  averments  in  the  declara- 
tion as  admitted  by  the  demurrer,  and  the  plaintiff's  right 
of  action  is  complete. 

But,  although  the  plaintiff  has  a  cause  of  action,  yet 
he  has  mistaken  the  rule  by  which  the  amount  of  his 
claim  is  to  be  estimated.  The  conclusion  of  the  third 
count  is,  that  the  defendants,  m  consideration  of  the  prem- 
ises, promised  to  pay  the  plaintitf  so  much  money  as  the 

(171) 


147-148    SUPEEME  COURT  OF  INDIANA. 

Black-well  v.  The  Board  of  Justices  of  Lawrence  County. 

lots  in  the  town  of  Bedford  were  worth;  averring  that 
they  were  worth  500  dollars.  As  the  promise  of  the  de- 
fendants arises  by  implication  of  law,  they  can  not  be 
said  to  have  promised  anything  but  that  to  which  the 
plaintiff  is  entitled  by  law.  Here  arises  a  question  of 
some  general  importance:  What  is  the  measure  of  the 
damages  to  which  the  plaintiff  is  entitled  ?  The  question 
has  been  frequently  agitated,  whether  the  vendor  of  real 
estate,  who  can  not  make  a  title,  or  who  makes  a  title 
that  afterwards  proves  defective,  is  bound  to  remunerate 
the  vendee  with  the  value  of  the  land,  or  with  the  pur- 
chase-money and  interest. 

,  Where  a  title  is  made  that  afterwards  proves  defective, 
a  distinction  has  been  sometimes  drawn,  between  the 
measure  of  damages  in  covenants  of  warranty  and  in  cov- 
enants of  seisin.  In  Massachusetts,  Connecticut,  and 
Sonth  Carolina,  the  measure  of  damages  in  covenants  of 
warranty,  is  the  value  of  the  land  at  the  time  of  the  evic- 
tion,    Go7'e  V.  Brazier,  3  Mass.  R.  543  ;  Horsford  v.  Wright^ 

Kirby,  3  ;  Liber  v.  Parsons,  1  Bay,  19  ;  Guerard  v. 
[*148]    Rivers,  id.  265.     In  New  York,  Virginia,  *Penn- 

sylvania,  and  Kentucky,  the  measure  of  damages 
in  such  cases,  is  the  purchase-money  and  interest.  Staats 
V.  Ten  Eyck,  3  Caines,  111 ;  Pitcher  v.  Livingston,  4  Johns. 
R.  1;  Lowther  v.  The  Commonwealth,  1  H  &  M.  201  ;  Nel- 
son V.  Matthews,  2  H.  &  M.  164 ;  Bender  v.  Fromberger,  4 
Dall.  436  ;  Harland  v.  Eastland,  Hard.  590;  Cox  v.  Strode, 
2  Bibb,  273 ;  Cosby  v.  West,  id.  568 ;  Booker  v.  Bell,  3  Bibb, 
173.  The  same  doctrine  is  supported  by  the  cases  of  Mor- 
ris^v.  Phelps,  5  Johns.  R.  49;  Caulkins  v.  Harris,  9  Johns. 
R.  324  :  Bennet  v.  Jenkins,  13  Johns.  R.  50;  Davis  v.  Hall, 
2  Bibb,  590.  But  in  covenants  of  seisin  the  decisions 
have  been  uniform,  that  the  purchase-money  and  interest 
is  the  measure  of  damages.  This  rule  is  either  directly 
or  indirectly  recognized  in  all  the  foregoing  cases.  See, 
also,  the  cases  of  Marston  v.  Hobbs,  2  Mass.  R.  433 :  Bick- 
ford  V.  Page,  id    455.'     When  there  is  a  covenant  to  con- 

(172) 


MAY  TERM,  1828.  148-149 

Blackwell  v.  The  Board  of  Justices  of  Lawrence  County. 

vey,  tiud  an  inability  to  perform,  unless  the  inability 
arises  from  fraud  in  the  covenanter,  the  measure  of  dam- 
ages is  the  same  as  in  covenants  of  seisin.  The  reason 
that  runs  through  all  the  cases  of  covenants  of  seisin,  ap 
plies  with  full  force  to  covenants  to  convey.  See,  also. 
the  cases  of  Rutledge  v.  Lawrence,  1  Marsh.  396;  Rankin 
V.  Maxwell,  2  Marsh.  488, — and  the  above  cases  of  Cox  v. 
Strode,  and  Daris  v.  Hall, — where  this  rule  is  expressly 
recognized.  We  therefore  consider  it  to  be  well  settled,  that 
in  a  breach  of  contract  to  convey,  the  measure  of  dama- 
ges is  the  consideration,  or  purchase-mone\',  with  interest. 
Assuming  the  position,  that  the  consideration  given 
for  these  lots  in  Bedford,  with  interest  thereon,  is  the 
measure  of  the  plaintifl"'s  damages  we  find  another  ques- 
tion that  is  peculiar  to  this  case,  viz..  What  was  this  con- 
sideration? It  was  not,  as  the  plaintiff's  counsel  sup- 
poses, the  original  purchase-money  of  the  lots  in  Pales- 
tine. That  money  was  not  given  for  the  lots  in  Bedford. 
Besides,  the  value  of  the  lots  in  Palestine  may  have  un- 
dergone a  material  change,  between  the  time  of  the 
original  purchase,  and  the  time  when  the  exchange  was 
first  contemplated.  If  the  exchange  had  been  made,  as 
in  ordinary  cases,  the  consideration  would  have  been,  the 
value  of  the  lots  in  Palestine  at  the  time  they  were  re- 
linquished. But  it  does  not  seem  equitable,  in  this  case,  to 
fix  on  that  as  the  time  at  which  their  value  should  be 

estimated;  inasmuch  as  the  removal  of  the  seat 
[*149]    *of  justice  may  have  occasioned  a  depreciation  in 

their  value.  Even  the  passage  of  the  act  of  as- 
sembly on  that  subject,  must  have  had  some  effect  in  les- 
sening their  value.  So  that  we  are  of  opinion,  that  the 
value  of  the  plaintift''s  lots  in  Palestine,  at  a  reasonable 
time  prior  to  the  passage  of  the  act  of  assembly  for  the 
re-location  of  the  seat  of  justice,  is  the  real  consideration 
that  passed  from  the  plaintiff,  which,  with  interest  thereon 
from  the  time  of  the  relinquishment,  is  the  proper  meas- 
ure of  damages  in  this  case. 

(173) 


149-150     SUPREME  COUKT  OF  INDIANA. 


Justice  V.  The  Board  of  Justices  of  Vermillion  Countv, 


From  tliis  view  of  the  subject,  it  is  evident  tliat  the 
piaintitF  has  mistaken  the  measure  of  damages  to  which 
he  is  entitled.  But  this  does  not  materially  affect  the 
declaration.  The  important  facts  that  show  what  the 
plaintiffs  demand  really  is,  are  correctly  set  forth.  The 
balance  of  the  declaration  is  the  conclusion  of  the  law  on 
this  statement  of  facts.  It  is  all  mere  formality;  and  a 
mistake  in  this  matter  of  form  can  not  be  taken  advant- 
age of  on  a  general  demurrer.  The  demurrer  to  the  de- 
claration should  have  been  overruled. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  with  directions  to  permit  the  demurrer 
to  be  withdrawn,  &c. 

Naijlor  and  Dewey,  for  the  plaintitf. 

Nelson,  for  the  defendants. 


Justice  v.  The  Board  of  Justices  of  Vermillion  County. 

Contract — Condition — Performance — Tender. — In  an  action  on  a  con- 
tract in  which  something  is  to  be  done  by  the  plaintiff,  on  condition  of 
which  the  defendant  undertakes  to  pay,  the  plaintiff  in  his  declaration 
must  aver  a  performance  or  a  readiness  to  perform  on  his  part.  But  the 
want  of  such  an  averment  must  be  taken  advantage  of  by  demurrer;  or, 
if  the  judgment  be  by  default,  by  motion  in  arrest  (a). 

Same — Order  of  Proof — Practice. — The  plaintiff,  in  such  an  action,  can 
not  be  obliged  to  prove  performance  of  his  part  of  the  contract,  before  he 
has  proved  the  existence  of  the  contract  itself. 

APPEAL  from  the  Vermillion  Circuit  Court. — This 
was  an  action  of  assumpsit  by  Justice  against  The  Board 
of  Justices  of  Vermillion  county.  Plea,  the  general  issue. 
Verdict  and  judgment  for  the  defendants. 

Scott,  J. — The  appellant,  who  was  plaintiff  be- 

[*150]    low,  states  in  "^his  declaration  that  tho  board  of 

county  commissioners,  at  their  May  session,  made 

(a)  41  Ind.  165 ;  57  Id.  393  ;  56  Id.  594 ;  24  Id.  377  ;  55  Id.  161 ;  55  Id. 
475. 

(174) 


.MAY  TEJ(M,  lc^2^.  150 


Justice  c.  The  Board  of  Justices  of  Vermillion  County. 


a  plan  of  a  temporary  coiirt-honse  for  the  said  county, 
and  ao-reed  with  him  that  he  should  be  the  undertaker 
of  the  building,  on  his  entering  into  bond  with  surety  for 
the  faithful  performance  of  the  contract,  on  or  before  the 
first  day  of  i!Tovember  following;  for  which  services  he 
was  to  receive  of  the  said  commissioners  the  sum  of  345 
dollars.      He    then    goes    on    to    state    that,    afterwards, 
to  wit,  on  the  —  day  of  May  aforesaid,  at  the  county 
aforesaid,  in  consideration  thereof,  (alluding  to  the  afore- 
said agreement,)  and  that  the  said  plaintiff,  at  the  special 
instance  and  request  of  the  said  commissioners,  had  then 
and  there  undertaken  and  faithfully  promised  the  said 
commissioners  to  perform  and  fulfill  the  said  agreement, 
in  all  things  on  his  part  and  behalf  to  be  performed  and 
fulfilled,  they  the  said  commissioners  undertook,  and  then 
and  there  faithfully  promised  the  said  plaintiff,  to  per- 
form and  fulfill  the  said  agreement  in  all  things  on  their 
part  to  be    performed   and  fulfilled.     He  avers  that  he 
built  the   house  according   to  the  plan  prescribed,  and 
within  the  time  specified;  and  assigns  the  breach,  that 
neither  the  board  of  commissioners,  during  their  contin- 
uance in  office,  nor  the  board  of  justices  to  whom  were 
transferred  the  powers  and  authority  of  the  said  commis- 
sioners, have  paid  the  said  sum,  &c.     Plea,  non-assump- 
sit; and  issue.     The  cause  was  tried  by  a  jury;  and  there 
was  a  verdict  and  judgment  for  the  defendants. 

We  are  informed,  by  a  bill  of  exceptions,  that  the  de- 
fendants objected  to  the  admission  of  any  evidence,  on 
the  part  of  the  plaintiff,  of  the  contract  in  the  declara- 
tion mentioned,  until  the  plaintiff  should  prove  that  the 
bond  in  the  said  contract  mentioned  had  been  given  by 
the  plaintiff;  or  that  the  giving  of  the  bond  had  been 
either  prevented  or  expressly  waived  by  the  defendants. 
Whether  the  giving  of  the  bond,  mentioned  in  the  decla- 
ration, is  any  part  of  the  contract  declared  on,  or  is  only 
set  out  as  inducement,  need  not  now  be  decided,  ^or  is 
it  necessary  at  present  to  inquire  whether  the  giving  of  a 

(175) 


150-151    SUPREME  COURT  OF  INDIANA. 

Townsend  v.  The  State. 

bond,  where  it  is  a  part  of  the  contract,  is  material  to  be 
averred  after  the  completion  of  the  work,  to  secure  which 
was  the  sole  object  of  the  bond.  Giving  the  defendants 
all  they  claim,  as  it  respects  the  importance  of  giviug 
bond  and  the  necessity  of  that  fact  being  averred 
[*151]  in  the  declaration,  neither  the  time  nor  *the  man- 
ner of  taking  advantage  of  the  defect  could  avail 
them  in  this  case.  Where  the  undertaking  is  founded  on 
a  contract  in  which  something  is  to  be  done  by  the  plain- 
tiff, on  condition  of  which  the  defendant  undertakes  to 
pay,  it  is  necessary  for  the  plaintiff"  in  his  declaration  to 
aver  a  performance  or  a  readiness  to  perform  on  his  part. 
But  the  Avant  of  such  an  averment  in  the  declaration, 
must  be  taken  advantage  of  by  demurrer ;  or,  if  the  judg- 
ment be  by  default,  by  motion  in  arrest.  1  Esp.  IST.  P. 
129.  Collins  v.  Gibbs,  2  Burr.  899.  Here  was  an  issue  in 
fact  for  the  jury  to  try.  All  the  evidence  ought  to  have 
relation  to  the  issue;  and  all  evidence  pertinent  to  the 
issue  ought  to  go  to  the  jury.  To  require  a  party  to 
prove  performance  of  a  contract,  before  he  can  be  per- 
mitted to  prove  its  existence,  is,  to  say  the  least  of  it,  a 
novel  proceeding. 

There  is  another  bill  of  exceptions  in  the  record ;  but 
it  states  no  opinion  of  the  Court  to  which  exception  is 
taken.  For  the  reason  already  noticed  the  judgment 
must  be  reversed. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

Deicey,  for  the  appellant. 

Judah,  for  the  appellees. 


Townsend  v.  The  State. 


School  Fund— Violations  of  Liquor  Law. — The  fine,  on  a  conviction  of 
retailing  spirituous  liquors  without  a  license,  belongs  to  the  county  for  the 
purposes  of  education;  but  this  circumstance  need  not  be  stated  in  the 
judgment. 

(176) 


MAY  TERM,  1828.  151-152 

Townsend  v.  The  State. 

Criminal  Practice— Endorsement  of  Indictment. — A  judgment  against 
a  defendant,  in  a  criminal  cause,  will  not  be  reversed  because  the  record 
does  not  show  that  the  indictment  was  endorsed,  "  a  true  bill,"  by  the 
foreman  of  the  grand  jury  (a). 

Liquor  Law — Void  License. — A  license,  to  retail  spirituous  liquors  for 
three  months,  was  granted  by  the  board  of  county  justices.  The  license, 
as  appeared  on  its  face,  had  been  granted  on  the  payment  of  Ji/tt/  cents. 
Held,  that,  under  the  statute,  no  license  to  keep  a  tavern  or  to  retail  spir- 
ituous liquors,  could  be  granted  on  the  payment  of  a  less  sum  than  five 
dollars;  and  that,  therefore,  the  license  in  this  case  was,  jmma  facie,  abso- 
lutely void. 

Jury — Province  of.— The  jury  are  the  judges  of  the  facts,  both  in  civil  and 

criminal  cases;   but  they  are  not  in  either,  the  judges  of  the  law.     They 

are  bound  to  find  the  law  as  it  is  propounded  to  them  by  the  Court. 

[*152J  They  may,  indeed,  find  a  general  verdict,  including  both  *the  law 
and  the  facts ;  but  if,  in  such  verdict,  they  find  the  law  contrary  to 
the  instructions  of  the  Court,  they  thereby  violate  their  oath  (6). 

Evidence — Competency — Question  for  the  Court. — Whether  evidence 
be  competent  or  not,  is  always  a  question  for  the  decision  of  the  Court. 

ERROR  to  the  Morgan  Circuit  Court. 

HoLMAN,  J. — Indictment  for  retailing  spirituous  liquors 
without  license.  Plea,  not  guilty.  On  the  trial,  the  de- 
fendant presented  the  following  license,  to  wit :  "  State 
of  Indiana,  Morgan  count}',  January  term,  1827.  Ordered 
by  the  board  of  county  justices,  that  Silas  Townsend  be 
and  he  is  hereby  authorized  to  retail  spirituous  liquors,  in 
Morgan  county,  for  three  months  from  the  lirst  day  of 
January,  1827;  the  said  Silas  Townsend  having  paid  the 
sum  of  fifty  cents  to  the  treasurer  for  the  said  term.  Wit- 
ness, George  H.  Buler,  elk."  Which  license,  it  is  said, 
covered  the  time  when  the  retailing  of  the  spirituous 
liquors,  charged  in  the  indictment,  was  proved  to  have 
taken  place.  The  counsel  for  the  state  objected  to  the 
admission  of  his  license  as  evidence  to  the  jury,  and  the 
Circuit  Court  sustained  the  objection  and  rejected  the  li- 
cense; to  which  opinion  of  the  Court  the  defendant  ex- 
cepted. The  defendant  moved  the  Court  to  instruct  the 
jury,  that  they  were  the  judges  of  the  law  and  the  fact 

(a)  25  Ind.  415.     (6)  Overruled.  4  Blkf.  150 ;  10  Ind.  502-536. 
YOL.   II.— 12  (177) 


152-153   SUPKEME  COURT  OF  INDIANA. 


Townsend  c.  The  State. 


in  this  ease,  and  that  the  power  of  Courts  in  criminal 
cases  is  only  advisory  ;  which  instructions  the  Court  re- 
fused to  give;  but  instructed  the  jury  that  it  was  their 
province,  in  criminal  cases,  to  determine  whether  the  facts, 
proved  by  the  evidence,  constitute  an  ofience  under  the 
law,  as  it  is  propounded  to  them  by  the  Court.  The  jury 
found  the  defendant  guilty,  and  assessed  his  fine  at  two 
dollars;  and  the  Court  gave  judgment,  that  the  state  of 
Indiana  recover  against  the  said  defendant  the  sum  of 
two  dollars,  by  the  jurors  assessed,  together  w^ith  her 
costs. 

It  is  here  contended,  that  this  judgment  is  erroneous 
because  it  does  not  state  that  the  fine  is  for  the  use  of  the 
county  seminary  of  Morgan  county.  That  this  fine  when 
collected  belongs  to  the  county  for  the  purposes  of  educa- 
tion, is  not  disputed ;  but  the  question  is,  whether  it  is 
niaterial  that  this  appropriation  of  it  should  appear  in 
l^e  judgment.  The  appropriation  may  or  may  not  ap- 
pear in  the  judgraent,without  affecting  the  right  of 
[*153]  the  county ;  and,  in  the  present  form  of  the  *judg- 
ment,  the  right  of  the  county  is  complete,  without 
any  additional  appropriation. 

Another  point  that  presents  but  little  difficulty  may 
here  be  disposed  of;  that  is,  that  this  judgment  is  erro- 
neous, because  the  record  does  not  show  that  the  indict- 
ment was  endorsed,  "  a  true  bill,"  by  the  foreman  of  the 
grand  jury.  Had  this  objection  been  made  in  the  Circuit 
Court,  so  that  we  should  have  known  that  the  indictment 
had  not  this  necessary  endorsement,  it  would  have  become 
a  material  point  in  the  case ;  but,  presented  as  it  is  for 
the  first  time  in  this  Court,  it  loses  its  importance,  inas- 
much as  a  complete  record,  conclusive  as  to  every.material 
fact  in  the  case,  may  be  made  up  without  it. 

A  question  of  some  importance  and  diflaculty  is  pre- 
sented by  the  refusal  of  the  Circuit  Court  to  admit  the 
defendant's  license  to  be  read  as  evidence  to  the  jury. 
The  act  to  license  and  regulate  taverns,  approved  the  20th 

^  (178) 


MAY  TKRM,  1828.  153-154 

Townsend  t.  The  Slate. 

of  January,  1824,  R.  C.  1824,  p.  406,  provides,  in  the  lirst 
section,  that  the  county  commissioners  (whose  powers  the 
board  of  county  justices  now  possesses,)  are  authorized 
to  license,  as  retailers  of  spirituous  liquors,  any  persons 
who  apply  therefor:  but  shall  not  grant  such  license,  un- 
less the  person  applying  shall  produce  the  certiticate  of 
twelve  householders  that  he  is  of  good  moral  character, 
and  that  it  would  be  for  the  benefit  of  travelers  if  he  was 
so  licensed;  nor  unless  he  shall  give  bond  to  keep  good 
order  in  his  house.  The  second  section  requires,  that  the 
person  so  licensed  shall  constantly  keep  the  bedding, 
stabling,  and  other  accommodations,  necessary  for  the 
convenience  of  travelers.  In  the  third  section  it  is  enacted, 
that  no  person  shall  obtain  license,  as  a  retailer  of  spirit- 
uous liquors,  until  he  shall  pay  to  the  county  treasurer 
the  amount  required  by  law  for  such  license;  nor  shall 
any  license  continue  for  more  than  one  year.  By  an 
amendatory  act,  approved  the  12th  of  February,  1825,  it 
is  enacted,  that  when  any  person  shall  make  application, 
under  the  provisions  of  the  act  to  which  this  is  an  amend- 
ment, for  a  license  to  keep  a  tavern,  he  shall  produce  a 
certificate  of  twenty-four  householders,  &c.  The  act  then 
proceeds  to  make  some  further  additional  regulations,  as 
to  the  house,  stable,  bedding,  &c.,  that  he  shall  possess. 
Stat.  1825,  p.  99.  The  act  respecting  the  revenue,  ap- 
proved the  30th  of  January,  1824,  R.  C.  1824,  p. 
[*154]  339,  provides,  that  the  amount  required  for  a  *li- 
cense,  to  retail  spirituous  liquors,  shall  not  be  less 
than  five,  nor  more  than  twenty-five  dollars.  It  was  un- 
der these  acts  of  assembly  that  this  license  was  granted. 
From  the  whole  phraseology  of  these  two  acts  regulat- 
ing taverns,  it  would  seem  that  the  legislature  considered 
that  a  license  to  retail  spirituous  liquors,  and  a  license  to 
keep  a  tavern,  mean  the  same  thing.  Without  this  con- 
struction of  their  language,  there  would  be  some  confu- 
sion on  the  subject;  but  with  this  construction  the  whole- 
subject  is  plain.     The  same  pre-requisites  are  required  of 

(179) 


154-155    SLTPEEME  COURT  OF  IXDIAXA. 

Townsend  r.  The  State. 

him  who  would  obtain  a  license  to  retail  spirituous  liquors, 
as  of  him  who  would  obtain  a  license  to  keep  a  tavern; 
and  a  license  to  retail  spirituous  liquors,  is  a  license  to 
keep  a  tavern,  and  so  vice  versa;  and  it  must  be  in  this 
light  that,  we  consider,  the  license  to  retail  spirituous 
liquors  was  presented  as  a  defence  in  this  case.  When 
we  consider  the  nature  of  the  act  for  which  this  license  is 
required,  we  shall  tind  it  necessary  to  give  the  legislative 
provisions  on  the  subject  a  strict  construction.  It  has 
long  been  seen,  that  the  practice  of  retailing  spirituous 
liquors  is  productive  of  serious  evils  to  the  community ; 
it  has  therefore  long  been  a  subject  of  legislative  interfer- 
ence. The  general  assembly  has,  from  time  to  time, 
adopted  measures  to  repress  this  growing  evil,  and  to  con- 
fine it  in  as  narrow  bounds  as  seemed  to  be  consistent 
with  the  real  or  imaginary  rights  of  individuals.  There- 
fore, every  pre-requisite  for  the  granting  of  a  license  for 
this  purpose  should  be  strictly  and  rigidly  required.  If 
w^e  consider  such  a  license  in  regard  to  the  eft'ect  it  has 
upon  the  accommodation  of  travelers,  we  shall  find  rea- 
sons for  the  same  strictness  of  construction.  One  of  the 
pre-requisites  to  the  granting  of  such  a  license,  to  wit,  the 
payment  of  the  sum  required  by  law,  has  another  reason 
why  it  should  be  strictly  construed,  because  it  is  in  aid  of 
the  public  revenue  of  the  county. 

What,  then,  is  the  effect  of  a  license  granted  without 
these  pre-requisites?  How  is  it  to  be  known,  whether 
these  pre-requisites  have  been  complied  with  or  not? 
What  tribunal  has  authority  to  inquire  into  the  proceed- 
ings of  the  board  of  justices  on  this  subject  ?  These  ques- 
tions are  of  importance;  but  they  are  in  some  measure 
solved,  by  considering  that  the  justices  acted  minis- 
terially, and  not  judicially  in  this  matter.  The 
£*155]  *only  questions  that  can  arise,  are  on  plain  mat- 
ters of  fact  relative  to  the  performance  of  the 
pre-requisites.  Whosoever  performs  the  pre-requisites  is 
entitled  to  the  license;    and  there  is  no  case  where  the 

(180) 


MAY  TERM,  1828.  155 

Townsend  v.  The  State. 

pre-requisites,  or  any  of  them,  can  be  dispensed  with. 
There  is  no  room  for  discretion,  except  in  the  amount  at 
which  the  license  shall  be  granted,  and  then  the  range  of 
discretion  is  only  between  five,  and  twenty-five  dollars. 
If  the  act  of  granting  a  license  is  in  its  nature  a  ministe- 
rial act,  every  tribunal,  and  every  individual  who  is 
aftected  by  it,  may  examine  into  the  grounds  on  which 
it  has  been  granted ;  and  if  it  is  found  that  it  was  granted 
contrary  to  law,  it  may  be  treated  as  absolutely  void.  If 
it  were  otherwise,  it  would  place  the  justices,  in  this  mat- 
ter, superior  to  the  law;  and  the  acts  of  assembly  to  them^ 
would  only  be  directory,  and  could  not  be  rendered  im- 
perative, as  there  is  no  appeal  from  their  order.  There 
is  no  ground  on  which  to  consider  this  act  of  theirs  as 
only  voidable,  and  therefore  good  until  it  is  set  aside,  aa 
there  is  no  provision  made  for  reviewing  it.  It  must, 
therefore,  be  absolutely  void,  or  unquestionably  valid ; 
and  surely  the  legislature  never  intended  to  sanction  the 
idea,  that  justices  might  do  just  as  they  pleased  in  grant- 
ing tavern  licenses;  and  that  no  one  should  question  the 
validity  of  their  acts.  It  is  a  general  rule  in  England  to 
admit  a  person  to  show  that  he  is  not  within  the  scope 
of  the  bankrupt  laws,  although  the  authorized  commis- 
sioners have  declared  him  a  bankrupt.  1  Stark.  Ev.  253. 
In  Crepps  v.  Burden,  Cowp.  640,  it  was  held  to  be  a 
sufficient  answer,  in  an  action  of  trespass,  to  a  conviction 
for  carrying  on  a  trade,  that  the  justices  had  no  juris- 
diction. The  same  rule  holds  as  to  an  order  of  removal 
by  the  justices.  1  Stark.  Ev.  253.  We,  therefore,  unhes- 
itatingly decide,  that  a  license  granted  without  the  stat- 
utory pre-requisites  is  absolutely  void;  and  that  any  tri- 
bunal that  has  to  act  upon  it,  may  declare  it  so. 

It  is  unnecessary  to  inquire  how  it  is  to  be  known, 
whether  these  pre-requisites  have  been  complied  with  or 
not;  for  in  this  case  the. license  shows  on  its  face,  at  least 
presents  strong  unrebutted  evidence  of  the  fact,  that  it  was 
granted  without  the  payment  of  the  sum  required  by  law. 

(181) 


155-156     SUPREME  COURT  OF  IXi)IANA. 

Townsend  v.  The  State. 

It  is  granted  for  the  sum  of  fifty  cents,  when  live  dollars 
is  the  lowest  sum  for  such  a  license.  This  license, 
[*156]  it  is  true,  is  for  but  three  months ;  but  *the  rev- 
enue law  has  made  no  division  of  time,  in  fixing 
the  amount  to  be  paid  for  such  a  license.  It  can  not  be 
granted  for  more  than  one  year,  but  there  is  nothing  to 
proliibit  the  granting  of  it  for  a  shorter  time ;  but  the 
law  is  imperative,  without  any  regard  to  time,  that  it 
shall  not  be  granted  for  a  less  sum  than  five  dollars.  If, 
in  this  case,  the  holder  of  the  license  actually  paid  the 
full  amount  required  by  law^,  it  lay  upon  him  to  show  it, 
as  the  license  presented  by  him  was,  at  least,  prima  facie 
evidence  to  the  contrary.  In  granting  this  license  for 
the  sum  of  fifty  cents,  the  board  of  justices  have  under- 
taken to  exercise  their  discretion,  where  no  discretionary 
powers  were  given  by  the  legislature ;  the  license  was 
therefore  granted  without  authority.  The  defendant  him- 
self has  shown  that  he  was  not  entitled  to  it;  and  he  can 
not  screen  himself  from  the  penalty  of  the  law,  under  a 
license  which,  he  must  be  presumed  to  have  known,  was 
granted  to  him  in  violation  of  the  law.  This  license  be- 
ing out  of  the  pale  of  the  law  is  of  no  more  force  than 
if  granted  by  a  private  individual.  It  was  therefore 
within  the  province  of  the  Circuit  Court,  on  inspec- 
tion, to  know,  and  determine,  that  it  was  granted 
without  authority,  and  constituted  no  defence  to  the  in- 
dictment. That  Court  properly  excluded  it  from  the  j  nry. 
The  direction  of  the  Circuit  Court  to  the  jury,  that  it 
was  not  the  province  of  the  jury  to  determine  the  law%  is 
assigned  for  error  with  some  degree  of  confidence.  As 
this  presents  a  question  that  has  been  frequently  agitated 
in  this  state,  we  have  devoted  considerable  time  to  its  ex- 
amination. It  would  seem  that  the  counsel  who  moved 
for  this  direction  of  the  Court,  supposed  that  the  jury 
possessed  more  extensive  powers  in  criminal  than  in  civil 
cases,  and  therefore  treat  this  as  a  criminal  case,  in  order 
to  secure  to  the  defendant  the  full  extent  of  a  discretion- 

(182) 


MAY  TERM,  1828.  156-157 

Townsencl  v.  The  State. 

ary  power  in  the  jury.  Although  misdemeanors  of  this 
kind  are  sometimes,  in  general  terms,  classed  among  crim- 
inal cases,  yet,  in  every  material  feature,  they  are  more 
nearly  assimilated  to  civil  cases  than  to  criminal;  but  we 
have  been  able  to  find  no  material  distinction  between 
civil  and  criminal  cases,  as  it  regards  the  province  of  the 
jury.  The  powers  and  the  duties  of  juries  are  the  same, 
except  where,  under  peculiar  circumstances,  their  powers 

are  enlarged  and  extended.  It  has  been  frequent- 
[*157]    ly  contended,  that  the  jury  have  a  right  to  *deter- 

mine  the  law  as  well  as  the  fact ;  but  we  have 
never  met  with  a  single  principle  of  law  that  supports 
the  position;  nor  a  single  decided  case  of  any  respecta- 
bihty  that  sanctions  such  a  principle.  In  this  case  the 
10th  sec.  of  the  1st  art.  of  the  constitution,  is  urged  as 
supporting  the  position.  That  section  provides,  that  in 
indictments  for  libels,  the  jury  shall  have  a  right  to  de- 
termine the  law  and  the  facts,  under  the  direction  of  the 
Court,  as  in  other  cases.  This  provision  in  the  constitu- 
tion seems  utterly  to  defeat  the  purposes  for  which  it  was 
introduced;  and  to  present  a  conclusive  argument  against 
the  existence  of  a  general  right  in  the  jury  to  determine 
the  law  in  all  cases.  Admitting  that  it  gives  the  right 
contended  for,  in  the  case  of  libels,  does  it  give  that  right 
in  any  other  cases?  And  if  that  right  previously  existed 
in  all  cases,  why  make  this  provision  in  the  case  of  libels? 
The  adoption  of  this  provision,  by  the  framers  of  the 
constitution,  is  therefore  the  expression  of  an  opinion 
that  no  such  general  right  existed ;  and  the  adoption  of 
it  in  cases  of  libels  only  is  conclusive  that  they  did  not 
intend  to  extend  it  to  any  other  cases.  The  expression 
of  the  one  excludes  the  others.  So  that,  if  this  question 
depended  solely  upon  this  part  of  the  constitution,  it 
would  be  decisive  against  the  general  right  of  juries  to 
determine  questions  of  law.  Previously  to  the  formation 
of  our  constitution,  there  had  been  a  violent  struggle  in 
England,  between  the  subjects  and  the  crown,  on  the  doc- 

(183) 


157^158   SUPEEME  COUET  OF  INDIANA. 


Townsend  v.  The  State. 


trine  of  libels;  in  which  the  oppressive  power  of  the 
crown,  enforced  by  the  Courts  of  justice,  rendered  it  a 
matter  of  high  importance,  that  in  state  prosecutions  for 
libels,  the  jury  should  determine  the  law  as  well  as  the 
facts.  This  was  seen  and  known  by  the  framers  of  our 
constitution,  and  this  provision  may  have  been  made  to 
prevent  the  occurrence  of  such  a  state  of  things  in  this 
state.  But  it  was  not  thought  necessary  to  extend  this 
right  of  juries  to  any  other  cases.  So  that  all  other  cases 
are  left  as  they  were  before.  We  shall  therefore  examine 
into  the  general  province  of  juries,  as  to  questions  of  law, 
leaving  tiie  case  of  libels  where  they  are  placed  by  the 
constitution. 

The  maxim,  ad  qucestionem  juris  non  respondent  juratoreSy. 
seems  to  be  as  old  as  the  common  law.  See  Co.  Litt.  155, 
15(3. — Foster's  Crown  Law,  255,  256.     It  had  the   same 

origin  with  the  maxim,  ad  qucestionem  facti  non  re- 
[*158]    spondent  judices.    These  *two  maxims  divide  and 

designate  the  powers  of  Courts  and  juries.  Ta 
Courts  are  assigned  all  questions  of  law;  to  juries  all 
questions  of  fact.  This  distinction  in  the  powers  of  the 
tw.o  tribunals,  runs  through  all  the  books  and  cases  on 
the  subject.  In  no  case  can  the  Court  decide  upon  an 
issue  in  fact,  unless  by  express  statutory  provision  ;  nor 
can  the  jury  in  any  case  determine  an  issue  of  law.  The 
Court  must  take  the  facts  to  be,  as  found  by  the  jury; 
and  the  jury  must  yield  to  the  law  as  delivered  by  the 
Court.  It  is  true,  that  the  Court  has  the  power  to  set 
aside  a  verdict  found  contrary  to  the  facts  established  by 
the  evidence,  but  it  can  not  determine  the  facts  to  be  dif- 
ferent, but  must  submit  the  case  to  another  jury  ;  and  the 
jury,  if  they  are  unwilling  to  sanction  the  law  as  deliv- 
ered by  the  Court,  may  find  the  facts  specially,  and  leave 
to  the  Court  the  responsibility  of  determining  the  law. 
This  distinction,  between  the  province  of  the  Court  and 
of  the  jury,  runs  through  the  whole  system  of  our  juris- 
prudence.     "When   an  issue  in  law  is  formed,  the  jury 

(184) 


MAY  TERM,  1828.  158-159 

Townsend  v.  The  State. 

have  nothing  to  do  with  it.  When  any  matter  of  law  is 
pleaded,  it  concludes  to  the  Court,  and  not  to  the  country 
or  jury.  Whenever  the  facts  in  a  case  are  admitted,  a 
jury  is  unnecessary  ;  unless  it  is  to  find  the  consequences 
of  the  facts,  as  in  cases  of  damages,  which  depend  almost 
exclusively  upon  facts.  Juries  are  generally  sworn  to  try 
issues,  or  inquire  of  damages ;  and  their  oaths  require 
them  to  give  their  verdict  according  to  evidence ;  and  as 
evidence  proper  for  a  jury,  applies  exclusively  to  facts, 
and  never  applies  to  the 'law,  the  oaths  of  the  jurors  ne- 
cessarily limit  them  to  the  finding  of  facts. 

If  juries  were  authorized  to  determine  matters  of  law, 
their  rules  of  decision,  and  consequently  the  rights  of  in- 
dividuals, would  necessarily  be  uncertain  and  fluctuating. 
They  neither  have,  nor  are  presumed  to  have,  a  compe- 
tent knowledge  to  decide  according  to  any  settled  princi- 
ples ;  and  being  so  frequently  succeeded  by  each  other,  it 
would  be  impossible,  in  any  future  time,  to  establish  any 
permanent  rules  of  decision.  If  the  Court  decide  con- 
trary to  laAv,  the  decision  may  be  corrected  in  an  appel- 
late tribunal,  and  no  matter  how  often  an  erroneous  deci- 
sion may  be  made  in  the  same  case,  it  can  be  as  often  set 
right  by  a  reversal  of  the  judgment.     If  the  jury  may 

decide  the  law,  the  Court,  it  is  true,  may  set  aside 
[^159]    the  verdict ;   but  as  ^only  two  new  trials  can  be 

granted  to  the  same  party,  if  three  successive 
juries  concur  in  an  erroneous  verdict,  the  evil  is  without 
a  remedy.  The  most  important  controversies  might  thus 
be  determined,  contrary  to  the  plainest  principles  of  law, 
without  a  possibility  of  redress.  Thus  the  rights  of  in- 
dividuals might  be  destroyed  by  the  decision  of  men  who 
were  never  presumed  to  know  th^  law;  and  that,  too,  in 
the  presence  of  a  competent  tribunal,  fully  aware  of  the 
injustice  that  was  done,  but  without  the  power  to  prevent 
it.  If  the  jury  have  a  right  to  find  a  verdict  contrar}'  to 
the  direction  of  the  Court,  it  would  not  only  render  the 
rules  of  decision  uncertain,  and  the  rights  of  individuals 

(185) 


159-160     SUPREME  COURT  OF  INDIANA. 

Townsend  v.  The  State. 

precarious,  but  it  would  also  prostrate  the  dignity  of  the 
Court;  and  would  ultimately  eflect  a  material  change,  if 
not  the  destruction  of  tliis  branch  of  the  government. 
But  the  organization  of  our  Courts,  the  system  of  plead- 
ing, and  the  rules  of  admitting  evidence,  all  go  to  show 
that  the  jury  do  not  possess  this  right. 

The  misapprehension  of  the  province  of  the  jury,  as  to 
questions  of  law,  has  principally  arisen  from  the  fact  that 
they  may  find  a  general  verdict;  which  involves  the  law 
with  the  facts ;  and,  in  finding  such  a  verdict,  they  may 
decide  the  law  to  be  different  from  what  the  Court  has 
determined  it  to  be.  This  they  can  do,  but  it  is  classed 
by  all  writers  on  the  subject  among  their  powers  of  doing 
wrong.  It  is  a  violation  of  their  oaths;  and  surely  the 
question  is  not,  how  illegally  a  jury  may  act,  but  what  is 
the  proper  sphere  of  their  action.  It  is  the  duty  of  the 
Court  to  determine  the  law,  and  the  presumption  is  that 
it  determines  it  correctly;  if  the  jury  have  a  right  to  find 
the  law  to  be  otherwise,  it  would  necessarily  follow,  that 
they  have  a  right  to  determine  the  law  to  be  what  it  is 
not.  Besides,  if  the  jury  find  the  law  contrary  to  the 
direction  of  the  Court,  the  Court  is  bound  to  set  aside  the 
verdict;  and  it  would  seem  strange,  that  the  jury  have  a 
right  to  do  what  the  Court  is  bound  to  undo.  The  duty 
of  the  Court  is  altogether  different  in  this  case,  from  the 
case  of  a  verdict  conti'ary  to  evidence.  There  the  Court 
exercises  a  discretion  in  setting  aside  a  verdict,  but  here 
its  duty  to  set  aside  the  verdict  is  imperative.  The  limi- 
tation of  the  power  of  the  Court  as  to  granting  new  trials, 
after  two  verdicts  for  the  same  party  in  a  civil  case,  or 
after  a  verdict  for  the  defendant  in  a  criminal 
[*^160]  case,  has  nothing  to  do  *with  the  general  prin- 
ciple. This  limitation  was  made,  in  the  one  case, 
to  put  an  end  to  litigation:  and,  in  the  other,  in  favor  of 
life  and  liberty;  and  was  not  intended  to  enlaro^e  the 
province  of  juries.  The  privilege  granted  to  juries  of 
finding  a  general  verdict,  can  not  be  construed  into  an 

(18G)' 


MAY  TERM,  1828.  160 

Townsend  v.  The  State. 

authority  to  find  the  law  contraiy  to  the  direction  of  the 
Court.  This  clearly  appears  from  what  is  said  of  their 
liability  to  punishment,  if  they  find  a  verdict  contrary  to 
law.  Sir  William  Blackstone,  in  treating  of  the  duties 
of  juries  in  giving  their  verdict  in  criminal  cases,  which, 
he  observes,  may  be  either  general  or  special,  says,  "  they 
may  set  forth  the  facts  of  the  case,  and  pray  the  judg- 
ment of  the  Court  as  to  the  law,  where  they  doubt  the 
matter  of  law,  and  therefore  choose  to  leave  it  to  the 
determination  of  the  Court;  though  they  have  an  unques- 
tionable right  of  determining  upon  all  the  circumstances, 
and  finding  a  general  verdict,  if  they  think  proper  so  to 
hazard  a  breach  of  their  oaths:  and  if  their  verdict  be 
notoriously  wrong,  they  may  be  punished,  and  the  ver- 
dict set  aside  by  attaint."  4  Bl.  Comm.  361.  Thus  it 
appears  to  us  to  be  clear,  that  although  the  jury  has  an 
unquestionable  right  to  find  a  general  verdict,  and  in  that 
verdict  they  may,  if  they  choose  to  violate  their  oaths, 
find  contrary  to  law,  or  contrary  to  the  direction  of  the 
Court,  yet  in  so  doing  they  have  passed  the  proper  bound- 
ary of  their  duty.  This  subject  was  thus  viewed  by 
Judge  Addison.  In  his  charges  to  grand  juries  at  the 
close  of  his  Reports,  page  62,  he  remarks,  that  strictly 
and  properly  it  belongs  only  to  Courts  to  decide  all  ques- 
tions of  law;  but  whenever  in  au}^  issue,  the  law  is  in- 
volved in  the  fact,  the  jury  may  decide  both  by  a  general 
verdict,  but  the  doctrine  of  attaints,  and  of  new  trials, 
proves  that  they  do  this  at  their  peril,  and  under  the 
control  of  the  Court. 

It  is  laid  down  by  Hawkins,  that  if  it  shall  plainly  ap- 
pear that  the  jury  are  perfectly  satisfied  of  the  truth  of  a 
fact,  and  the  Court  directly  tells  them,  upon  the  fact  so 
found,  the  judgment  of  the  law  is  such,  or  such,  and 
therefore  they  ought  to  give  their  verdict  accordingl}', 
yet  they  obstinately  insist  upon  a  verdict  contrary  to  such 
directions;  it  seems  agreeable  to  the  general  reason  of 
the  law,  that  the  jurors  are  finable  by  the  Court,  unless 

(187) 


160-161   SUPREME  COURT  OF  INDIANA. 

Townsend  v.  The  State. 

an  attaint  lies  against  them;  for  otherwise  they  would 
not  be  punishable  for  so  palpable  a  partiality,  in 
[*161]  taking  *upon  them  to  judge  of  matters  of  law, 
with  which  they  have  nothing  to  do,  and  of 
which  they  are  presumed  to  be  ignorant,  contrary  to  the 
express  direction  of  one  who  by  the  law  is  appointed  to 
direct  them  in  such  maUers,  and  is  to  be  presumed  of 
ability  to  do  it.  2  Hawks.  P.  C.  148 ;  3  Bac.  Abr.  783, 
784,  785.  Lord  Hale,  although  he  contends  against  the 
doctrine  of  fining  jurors  for  giving  a  verdict  against  the 
direction  of  the  Court,  except  in  the  King's  Bench,  yet 
clearly  maintains  our  position,  that  juries  have  nothing 
to  do  with  matters  of  law,  and  are  not  authorized  in  find- 
ing the  law  contrary  to  the  direction  of  the  Court.  2 
Hale's  P.  C.  160, 161,  311,  313.  The  cases  of  Pennsylvama 
V.  Bell,  Addison,  156,  and  Pennsylvania  v.  31' Fall,  id.  255, 
support  the  same  doctrine.  These  were  both  capital 
cases,  and  the  juries  were  expressly  charged,  that  it  was 
their  province  to  find  the  facts  only,  and  that  they  had 
nothing  to  do  with  questions  of  law,  which  were  to  be 
determined  by  the  Court.  In  the  first  of  these  cases,  the 
language  of  Judge  Addison  is  peculiarly  strong.  "  The 
laws,"  says  he,  "  must  operate  by  certain  rules,  not  the 
casual  feelings  of  jurors;  and  jurors  must  judge  of  the 
facts  according  to  certain  rules  of  law;  for  miserable 
would  be  our  situation,  if  our  lives  depended  not  on  fixed 
rules,  but  on  the  feelings  which  might  happen  to  be  ex- 
cited in  the  jurors  who  were  to  try  us.  I  therefore  know 
of  no  argument  less  proper,  or  more  dangerous,  or  to 
which  juries  ought  to  listen  with  greater  suspicion  and 
aversion,  than  that  which  must  derive  its  force  from  con- 
founding the  authority  of  a  Conrt  and  a  jury;  instilling 
into  the  one  a  prejudice  against  the  opinion  of  the  other; 
and  persuading  jurors  that  they  are  at  liberty  to  apply 
to  facts  a  rule  of  their  own,  difterent  from  that  which 
the  law  applies.  The  Court  is  the  montli  of  tlie  law. 
Whether  the  facts  are  so,  or  so,  it  lies  with  yoii  to  deter- 

(188) 


MAY  TEKM,  1828.  '       161-162 

Townsend  v.  The  State. 

mine,  according  as  you  believe  the  testimony;  leaving  it 
to  the  Court  to  pronounce  the  construction,  which  the 
law  puts  on  the  facts  so  found;  but  you  can  not,  but  at 
the  peril  of  a  violation  of  duty,  believing  the  facts,  say 
that  they  are  not  what  the  law  declares  them  to  be;  for 
this  would  be  taking  upon  you  to  make  the  law,  which 
is  the  province  of  the  legislature,  or  to  construe  the  law, 
which  is  the  province  of  the  Court."  Judge  Addison  has 
also  in  his  charges  to  grand  juries,  pp.  53  to  63,  entered 
at  full  length  upon  the  constitutional  authority 
[*162]  of  Courts  and  juries,  and  has  shown  by  a  *train 
of  arguments,  not  only  that  juries  are  limited  to 
matters  of  fact,  but  also  that  it  is  important  to  the  per- 
manency of  our  civil  institutions,  that  this  limitation 
should  be  strictly  observed. 

Thus,  from  all  that  we  have  seen  or  heard  on  this  ques- 
tion, we  are  prepared  to  say  without  hesitation,  that  the 
instruction  of  the  Circuit  Court  was  correct. 

But,  before  we  dismiss  this  case,  we  will  notice  another 
feature  in  it  that  is  not  unworthy  of  attention,  as  it  is 
predicated  on  a  supposed  right  in  the  jury  to  determine 
other  questions  of  law,  besides  those  involved  in  the  facts 
put  in  issue.  The  defendant  was  indicted  for  retailing 
spirituous  liquors  without  hcense.  It  seems,  by  a  bill  of 
exceptions,  to  be  admitted  that  the  fact  of  retailing  spir- 
ituous liquors  was  proved;  but  he  presented  a  license  in 
his  defence,  which  was  rejected  by  the  Court.  Kow  the 
only  question  of  law  that  conjecture  can  raise,  which  the 
defendant  required  to  be  submitted  to  the  jury,  must  have 
been  whether  this  license,  so  rejected  by  the  Court,  was 
legal  evidence  and  formed  a  justification  for  the  defend- 
ant. If  this  supposition  is  correct,  and  from  all  that  we 
can  discover  from  the  record  we  have  no  doubt  but  that 
it  is,  the  defendant  requests  the  acknowledgment  of  a 
right  in  the  jury,  which  we  presume  has  never  before  been 
contended  for:  a  right  to  determine,  not  only  the  law  in- 
volved in  the  facts  submitted  to  them,  but  to  determine 

(189) 


162-163     SUPREME  COURT  OF  INDIANA. 

ToAvnsend  v.  The  Slate. 

questions  of  law  as  to  the  competency  and  admissibility 
of  evidence,  which  have  been  expressl}'  excluded  from 
their  consideration,  by  the  decision  of  the  Court.  If  ju- 
ries were  recognized  as  possessing  such  a  right  as  this,  it 
would  immediately  prostrate  the  power  of  the  Court,  and 
overturn  every  legal  method  of  arriving  at  facts,  besides 
destroying  the  permanency  of  the  principles  of  law  in- 
volved in  the  facts.  We  can  not  but  think  that  a  calm 
consideration  of  the  consequences  of  such  a  course  of  pro- 
ceeding, would  so  alarm  its  most  strenuous  advocates,  as 
to  induce  them  to  abandon  it. 

Blackford,  J. — I  can  not  agree  to  a  part  of  the  opinion 
of  the  Court  which  has  just  been  delivered.  I  object  to 
that  part  of  it  which  states,  that  the  jury  have  not  a  right, 
if  they  please,  to  determine  the  law,  as  well  as  the  facts 
proved ;  and  also  to  that  part  of  it  which  considers, 
that,  if  the  jury  find  a  verdict  contrary  to  the  instructions 
of  the  Court,  as  to  the  law  applicable  to  the  evidence 
submitted  to  them,  they  thereby  violate  their 
[*163]  oath.  *I  conceive  that  the  acknowledged  right 
of  the  jury  to  find  a  general  verdict,  necessarily 
includes  their  right  of  deciding,  if  they  choose,  both  the 
law  and  the  facts  with  which  the  cause  is  connected  ;  and 
that  although  the  opinion  of  the  Court,  on  the  questions 
of  law  applicable  to  the  facts  proved,  is  entitled  to  great 
deference  and  respect  from  the  jury,  it  is  not  absolutely 
compulsory  upon  them.  I  entirely  agree  with  my  breth- 
ren that  it  is  the  right  and  the  duty  of  the  Court  to  grant 
a  new  trial,  if  the  verdict  be  contrary  to  law;  and  that 
the  Court  has  the  exclusive  right  to  decide  on  the  com- 
petency of  evidence. 

Per  Curiam. — The  j  udgment  is  aflirmed  with  costs.  To 
be  certified,  &c. 

Wick,  for  the  plaintiff. 
Whitcomb,  for  the  state 


(190) 


MAY  TERM,  1828.  163-164 


Levellin<^  v.  Leavell  and  Others. 


Levelling  v.  Leavell  and  Others. 

Trespass — Justification — Defence. — It  is  sufficient  for  a  plea  of  justifi- 
cation in  trespass,  to  justify  that  which  is  the  gist  of  the  action :  matters 
merely  in  aggravation  need  not  be  answered. 

Military  Law — Militia  Fines — Execution. — An  alia.s  or  pluries  list  of 
militia  fines  may  be  issued  by  the  judge  advocate  against  the  delinquents, 
whether  they  be  persons  conscientiously  scrupulous  of  bearing  arms  or 
not ;  and  it  is  not  necessary  for  such  list  to  be,  like  an  execution,  in  the 
name  of  the  state. 

Trespass — Justifi<:;ation — Pleading — Venue. — A  plea  of  justification  in 
trespass,  can  not  be  objected  to  for  the  want  of  a  venue ;  the  place  being 
laid  in  the  declaration,  and  the  trespass  justified  being  alleged  to  be  the 
same  with  that  complained  of. 

Arrest — Justification — Pleading. — If  A.  and  B.  justify  in  trespass,  as 
sheriff  and  deputy  sheriff,  under  an  alias  list  of  militia  fines  issued  by  a 
judge  advocate,  the  plea  must  show  which  of  the  defendants  is  the  sher- 
iff and  which  the  deputy. 

APPEAL  from  the  Heiny  Circuit  Court. 

Blackford,  J, — This  wa«  au  action  of  t-respass.  The 
declaration  contains  two  counts.  The  first  for  breaking 
and  entering  the  plaintiff's  close,  situate  in  the  county  of 
Henry,  and  taking  away  his  mare,  and  converting  her  to 
his  own  use.  The  second,  for  breaking  and  entering  the 
plaintiff's  dwelling  house,  situate  in  the  county  of  Henry, 
and  breaking  his  clock. 

Two  of  the  defendants,  Leavell  and  Forkner,  pleaded 
in  justification,  that  the  plaintiff,  conscientiously  scrupu- 
lous of  bearing  arms,  was,  on,  &c.,  at,  &c.,  by  a  Court  of 
assessment,  adjudged  to  pay  two  dollars  and  a 
[*164]  half  as  an  equivalent  for  not  ^performing  militia 
duty  in  the  year  1825;  that,  on,  &c.,  at,  &c.,  the 
judge  advocate  laid  before  the  Court  of  appeals  the  as- 
sessment against  the  plaintiff,  which  was  not  remitted  ; 
that,  on,  &c.,  the  judge  advocate  made  out  a  list  of  the 
fine  against  the  plaintiff,  which  list  was  signed  and  sealed 
by  the  senior  officer  of  the  Court  of  appeals,  and  deliv- 
ered to  the  sherift'  of  said  county  of  Henry,  where  the 

(191) 


164  SUPREME  COURT  OF  INDIA:N'A. 

Levelling  v.  Leavell  and  Others. 

plaintitf  resided,  who,  on,  &c.,  returned  the  list  to  the 
paymaster,  with  an  endorsement  that  the  same  had  not 
been  collected;  that  the  judge  advocate,  on  being  notified 
by  the  paymaster  of  this  return,  made  out  an  alias  list  of 
the  fine,  and  then  and  there,  to  wit,  on,  &c.,  delivered  the 
same  to  these  defendants,  sheriff  and  deputy  sheriff  of 
the  said  county  of  Henry,  to  be  collected;  that  before 
this  alias  list  was  returnable,  the  defendants,  with  the 
said  list,  entered  the  dwelling  house  of  the  plaintitf,  the 
door  being  open,  to  levy  the  amount,  using  no  unneces- 
sary force  ;  that  not  finding  goods  there  on  which  to  levy, 
they  entered  the  plaintift''s  close,  and  then  and  there,  with 
the  said  list,  levied  on  the  mare  to  satisfy  the  fine  and 
costs,  and  took  her  into  possession,  using  no  unnecessary 
force ;  that  by  virtue  of  said  list,  on,  &c.,  at,  &c.,  and  be- 
fore the  same  was  returnable,  the  defendants  sold  the 
mare,  after  due  notice,  at  public  vendue,  for  the  purpose 
aforesaid,  the  proceeds  of  which,  the  fine  and  costs  being 
deducted,  the  plaintiff  refused  to  accept,  and  the  defend- 
ants paid  the  same  into  the  treasury  of  the- said  county 
of  Henry;  and  that  the  trespasses  justified  are  the  same 
with  those  complained  of. 

The  other  defendant,  Boggs,  besides  the  general  issue, 
pleaded  a  justification  similar  to  that  of  his  co-defend- 
ants, with  the  exception  that  he  states  his  having  acted 
not  as  an  ofiicer,  but  in  aid  of  Leavell,  the  sherift",  and  in 
obedience  to  his  command. 

To  the  plea  of  Leavell  and  Forkner,  the  plaintift"  de- 
murred specially  for  the  following  causes:  1st,  the  plea 
does  not  answer  the  trespass  charged  as  to  the  house  and 
clock;  2d,  the  plea  sliows  that  the  fine  was  against  the 
plaintiff,  as  one  conscicntiouslj'  scrupulous  of  bearing 
arms;  and  that  the  alias  list  was  not  signed,  sealed,  and 
delivered,  by  the  senior  officer  of  the  Court  of  appeals, 
without  which  it  was  void;  3(1,  the  .plea  shows  that  the 
property  was  taken  on  an  alias  list  of  fines,  which  could 
not  issue  in  this  case;  4th,  it  does  not  appear  that  the 

(192) 


MAY  TERM,  1828.  164-165 


Levelling  i'.  Leavell  and  Others. 


process  was  in  the  name  of  the  state ;  5th,  it  does 
[*165]  *not  appear  that  the  levy  was  made  in  the  count}-, 
or  whilst  the  defendants  were  the  sheriff  and 
deputy;  6th,  it  does  not  appear  which  of  the  defendants 
justifies  as  sheriff,  and  which  as  deputy.  The  plaintiff' 
also  demurred  specially  to  the  plea  of  Boggs,  and  assigned 
for  cause,  the  first  four  objections  taken  to  the  other  plea. 
All  the  defendants  joined  in  demurrer,  and  the  Circuit 
Court  ffave  iudgment  in  their  favor. 

There  is  nothing  in  the  first  objection.  Entering  into 
the  dwelling  house,  breaking  the  close,  and  taking  the 
plaintiff's  mare,  constitute  the  gist  of  the  trespass  alleged  ; 
and  these,  the  defendants  undertake  to  justify:  breaking 
the  clock  is  merely  a  matter  of  aggravation,  and  need  not 
be  answered  by  the  plea.     Taylor  v.  Cole,  3  T.  R.  292. 

The  second  objection  is  also  untenable.  The  words  of 
the  militia  law  of  1824,  section  47,  are  express,  that  if  the 
money  be  not  made  on  the  first  list,  the  judge  advocate, 
on  being  notified  thereof  by  the  paymaster,  shall  issue  an 
alias  or  pluries  list  of  the  uncollected  fines.  The  law  re- 
quires the  first  list  to  be  signed  and  sealed  by  the  senior 
oflUcer;  but,  in  so  many  words,  authorizes  the  judge  ad- 
vocate himself  to  issue  the  subsequent  ones. 

As  to  the  third  objection,  we  are  clearly  of  opinion, 
that  the  provision  in  the  section  of  the  militia  law  re- 
ferred to,  which  requires  the  judge  advocate  to  issue  an 
alias  or  a  pluries  list,  extends  to  the  cases  of  fines  against 
persons  conscientiously  scrupulous  of  bearing  arms,  as 
well  as  to  all  others.  That  is,  obviously,  the  intention  of 
the  statute,  and  we  can  find  nothing  in  the  letter  to  war- 
rant any  other  construction. 

The  fourth  objection,  that  the  list  is  not,  like  execu- 
tions of  fieri  facias,  &c.,  in  the  name  of  the  state,  can  not 
be  supported.  It  is  plain,  that  the  form  contended  for  is 
not  within  the  intention  of  the  statute.  By  the  words,  a 
list  of  fines,  can  not  be  meant  a  formal  execution,  running 
in  the  name  of  the  state.  The  objection,  therefore,  de- 
VoL.  IL— 13  (193) 


165-166   SUPREME  COURT  OF  INDIANA. 

Levelling  v.  Leavell  and  Others. 

pends  oil  the  unconstitutionality  of  the  law.  The  clause 
in  the  constitution  saying,  "the  style  of  all  process  shall 
be,  The  State  of  Indiana,''  found  in  the  5th  article,  which 
relates  to  the  judiciary  department  of  the  government, 
has  no  relation  to  the  manner  of  collecting  militia  lines. 
There  is  a  section  in  the  seventh  article,  relative  to  these 
fines  as  to  the  conscientious  persons,  which  re- 
['•'166]  quires  that  they  shall  be  collected  *by  a  civi  offi- 
cer; but  it  says  nothing  as  to  the  form  of  the  pro- 
cess,— leaving  that,  as  we  conceive,  to  legislative  discre- 
tion. 

That  part  of  the  tifth  objection  to  this  plea,  which  re- 
lates to  the  want  of  a  venue,  is  answerd  by  observing  that 
the  place  is  laid  in  the  declaration,  and  it  was  not  neces- 
sary to  repeat  it  in  a  justification  of  the  trespass,  alleged 
to  be  the  same  with  that  complained  of.  As  to  the  other 
part  of  this  objection,  though  the  statement  of  the  fact 
said  to  be  omitted,  is  not  as  explicit  as  it  might  be,  we 
think  that  the  defect  is  rather  too  slight  to  authorize  a 
reversal  of  the  judgment  on  that  ground. 

The  last  cause  of  demurrer  to  this  plea  is  fatal ;  and 
the  plaintiff  was  entitled  on  it  to  the  judgment  of  the 
Court.  The  defendants,  Leavell  and  Forkner,  justify  as 
sherift'  and  deputy  sherifl',  but  do  not  designate  in  their 
plea  which  of  them  is  the  one,  or  which  the  other.  It  is 
impossible  that  this  can  be  correct.  The  plaintiff  has  a 
right  to  know  from  the  plea,  which  particular  defendant 
it  is  that  justifies  as  the  sheriff;  and,  also,  which  one  it  is 
that  justifies  as  the  deputy  sheriff.  The  plaintiff,  for  ex- 
ample, might  wish  to  deny  that  the  person  is  sheriff,  who 
justifies  in  that  character;  but  in  this  case  he  could  not 
do  so  without  averring  that  neither  of  these  two.  defend- 
ants was  the  sheriff.  That  would  surely  be  subjecting 
him  to  more  than  the  law  requires. 

The  special  plea  of  Boggs  is  a  bar  of  the  suit  as  to  him. 
The  causes  of  demurrer  to  his  plea  have  been  shown  to 
be  insufficient;  and  it  is  in  other  respects  substantially 
good.  (194) 


MAY  TERM,  1828.  166-167 

Hongland  and  Others  i'.  Moore. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded  to  the  Circuit  Court,  with  directions  to 
render  Judgment  on  the  demurrer  in  favor  of  Boggs,  and 
to  permit  the  otlier  defendants  to  withdraw  their  joinder 
in  demurrer  and  amend  their  plea. 

Sweetser  and  Smith,  for  tlie  appellant. 
Hariden,  for  the  appellees. 


[*167]  *HoAGLAND  and  Others  i\  Moore,  f 

Evidence— Weight  of — Review  of. — If  any  of  the  evidence,  which  h 
contradictory,  conduce  to  prove  the  plaintiff's  case,  and  he  obtain  a  ver.. 
diet,  the  refusal  to  grant  to  the  defendant  a  new  trial,  on  account  of  the 
insufficiency  of  the  evidence,  will  not,  except  in  extreme  cases,  be  avail- 
able in  error.  And  where  a  new  trial  is  applied  for  on  account  of  exces- 
sive damages,  and  refused,  the  damages  must  be  outrageously  excessive 
or  a  Court  of  error  will  not  interfere  (a). 

Contract — Part  Performance — Remedy. — In  the  case  of  a  special  con 
tract,  one  party  can  not,  by  a  part  performance  only  of  his  part,  sue  fot- 
and  recover,  in  indebitatus  assumpsit,  for  the  part  he  has  performed. 
But  if  he  perform  a  part  of  what  he  was  to  do,  and  be  prevented  irom 
performing  the  residue  by  the  conduct  of  the  other  party,  he  may  aban 
don  the  contract  and  recover  for  what  he  has  done.  (6). 

APPEAL  from  the  Scott  Circuit  Court. — Indebitatus 
assumpsit  for  goods  sold  and  delivered;  a  count  on  a 
quantum  valebant;  and  one  on  an  insimul  computassent. 
Moore  was  the  plaintiff  below,  and  Hoagland,  Hall,  and 
Ballard,  were  the  defendants.  Plea,  non-assumpsit.  Ver- 
dict and  judgment  for  the  plaintiff. 

Holm  AN,  J. — This  case  was  referred  to  arbitrators  who 
made  an  award,  which  was  afterwards  set  aside  by  the 
Circuit  Court,  but  on  what  grounds  does  not  appear. 
The  presumption  is  that  the  Circuit  Court  acted  correctly ; 
so  that  it  is  now  too  late  to  suarsrest  that  this  decision  was 


(a)  58  Ind.  431;  45  Id.  517,  148;  51  Id.  494;  57  Id.  121,  172,  314,  327. 
See  4  Ind.    79  ;  48  Id.  153.     (b)  Overruled  3  Ind.  59-72. 

(195) 


167-168    SUPREME  COURT  OF  INDIAI^A. 

Hoagland  and  Others  r.  Moore. 

erroneous,  without  showing  in  the  record  the  grounds  on 
which  that  suggestion  is  made.  The  plaintiff  obtained 
a  verdict  for  60  dollars.  The  defendants  moved  for  a 
new  trial,  which  was  refused  and  a  bill  of  exce}>tions 
taken,  in  which  the  whole  of  the  testimony  is  set  forth; 
of  which  the  following  is  the  substance: 

Abraham  Poor  stated,  that  he  was  present  when  a  con- 
tract was  entered  into  between  the  plaintiff  and  the  de- 
fendants. The  plaintiff  agreed  to  sell  the  defendants  100 
hogs  and  the  corn  in  a  certain  crib,  the  quantity  not 
known.  The  defendants  were  to  pay  100  dollars  for  the 
hogs,  and  50  cents  per  bushel  for  the  corn.  He  heard 
something  said  between  the  parties  about  the  payment  of 
20  dollars  immediately,  but  did  not  recollect,  particular!}', 
what  it  was.  Jane  Calvin  stated  that  she  was  present 
when  the  contract  was  made.     The  defendants  were  to 

have  the  hogs  for  100  dollars,  and  the  corn  in 
[*168]    *the  crib,  supposed  to  be  200  bushels,  for  50  cents 

per  bushel.  They  were  to  pay  20  dollars  imme- 
diately, and  execute  their  notes  for  the  balance  payable 
in  one  year.  Polly  Moore  testified  to  the  same  facts. 
(She  and  Jane  Calvin  are  daughters  of  the  plaintiff.) 
Nathaniel  Poor  stated,  that  he  was  present  when  the  hogs 
were  delivered  to  the  defendants;  that  there  was  a  con- 
versation about  the  obligations  for  the  purchase-money, 
in  which  Hoagland  observed  that  it  was  too  late  to  exe- 
cute the  notes,  to  which  the  plaintiff  made  no  reply.  He 
heard  nothing  said  at  that  time  about  money.  Philip 
Balhird  stated,  that  the  hogs  when  delivered  were  very 
poor,  and  could  scarcely  walk;  that  shortly  after  the 
delivery  of  the  hogs,  and  after  the  delivery  of  about  80 
bushels  of  corn,  he  went  with  Hoagland  to  demand  the 
balance  of  the  corn;  that  tlie  plaintiff's  daughters  were 
engaged  in  carrying  corn  out  of  the  crib  which  the  de- 
fendants were  to  have,  and  placing  it  in  another;  that 
these  girls,  who  were  the  witnesses  in  this  case,  went  into 
the  house,  and  he  saw  them  no  more  while  he  and  Hoag- 

(196) 


MAY  TERM,  1828.  168-169 

Hdagland  and  Others  i'.  Moore, 

land  remained  at  the  plaintiff's;  that  a  conversation  be- 
tween the  plaintiff  and  Hoagland  took  place  about  four 
or  live  rods  from  the  house;  that  Hoagland  demanded 
the  balance  of  the  corn  of  the  plaintiff",  observing  that  he, 
the  said  plaintiff',  knew  that  he  was  to  let  him,  Hoagland, 
have  200  bushels  of  corn  in  said  crib,  or  make  up  the 
deficiency  iu  rye;  that  he,  the  said  plaintiff',  knew  that 
the  whole  contract  depended  upon  his,  Hoagland's  get- 
ting the  corn  ;  that  if  he  could  get  the  corn,  he  would 
compl}^  with  the  contract  on  his  part,  by  executing  obli- 
gations, but  if  he  could  not  get  the  corn,  he  would  dis- 
annul the  whole  contract;  all  which  was  neither  admit- 
ted nor  denied  by  the  plaintiff;  that  the  plaintiff  replied 
that  he  could  not  let  him  have  the  corn;  Hoagland  said 
that  he  would  return  the  hogs;  the  plaintiff  said  he  would 
not  receive  them;  that  the  witness  heard  nothing  said 
about  money;  that  only  two  of  the  defendants  were 
present,  and  no  money  or  notes  were  tendered.  Isaac 
Hoffman  stated,  that  he  assisted  Hoagland  in  returning 
the  hogs  to  the  plaintiff's,  but  that  the  plaintiff  would  not 
receive  them,  but  directed  the  witness  to  turn  them  out 
of  his  enclosure.  Jane  Calvin  was  re-examined  and 
stated,  that  when  Hoagland  demanded  the  corn  of  her 
father,  at  the  time  spoken  of  by  the  witness,  Ballard,  she 

believed,  but  was  not  very  positive,  that  her  father 
[*169]    said,  that  one  reason  why  *he  would  not  let  the 

defendants  have  the  corn  was  because  they  had 
not  paid  him  the  20  dollars. 

The  Court  instructed  the  jury,  that  if  they  found  that 
the  defendants  had  failed  to  comply  with  the  contract  on 
their  part,  and  that  that  was  the  reason  the  plaintiff  re- 
fused to  comply,  the  plaintiff  had  a  right  to  recover  for 
so  much  of  his  property  as  the  defendants  had  received 
on  the  contract;  and  that  the  plaintiff  was  not  bound  to 
comply  on  his  part,  after  the  defendants  had  so  refused; 
and  that  if  they  found,  that  the  defendants  refused  to  pay 
the  20  dollars  and  to  execute  their  notes,  if  the  same  were 

(197) 


169-170    SUPREME  COURT  OF  INDIANA. 

Hoagland  and  Others  v.  Moore. 

by  the  contract  to  be  done  immediately,  they  should  tiud 
for  the  plaintiff  the  value  of  the  corn,  if  any  was  received 
by  the  defendants;  unless  they  should  lind  that  the  corn 
had  been  fed  to  the  plaintiiF's  hogs,  while  in  the  defend: 
ant's  possession;  but  that  if  the  defendants  had  made  use 
of  the  corn  in  feeding  their  own  stock,  they  were  liable 
for  the  value  of  it. 

It  is  strongly  insisted  in  this  case  that  the  evidence  did 
not  authorize  the  verdict;  and  that  therefore  a  new  trial 
3ught  to  have  been  granted.  On  this  subject  we  find  it 
aecessary  to  use  extreme  caution ;  as  it  is  the  exercise  of 
a  controlling  power  over  the  discretionary  powers  of  the 
Circuit  Court;  and  in  cases  where  they  generally  have  a 
far  better  opportunity  of  understanding  the  real  justice 
of  the  case  than  we  can  possibly  have.  The  right  of  a 
jury  in  estimating  the  weight  of  evidence,  and  the  dis- 
cretion of  the  Circuit  Court  in  sustaining  a  verdict,  sug- 
gested to  be  given  against  the  weight  of  evidence,  are 
matters  with  which  this  Court  should  not  interfere,  ex- 
cept on  extraordinary  occasions,  where  manifest  injustice 
appears  clearly  to  have  been  done.  In  this  case  there  is 
contradictory  evidence,  which  placed  the  credibility  of 
the  witnesses  before  the  jury.  With  this  we  have  noth- 
ing to  do.  When  there  is  legal  evidence  that  conduces 
to  prove  every  material  fact  in  a  case,  we  must,  except  in 
extreme  cases,  leave  the  weight  of  that  testimony  with 
the  jury,  under  the  superintendence  and  control  of  the 
Court  before  which  the  testimony  is  given  ;  and  when 
that  Court  approves  of  the  verdict,  and  refuses  a  new 
trial,  there  is  no  principle  of  jurisprudence  that  will  re- 
quire or  permit  an  appellate  Court  to  reverse  the  judg- 
ment. These  remarks  apply  with  their  full  force 
[*170]  to  the  amount  of  damages.  It  ought  to  be  *a 
case  of  damages,  excessively  outrageous,  to  au- 
thorize this  Court  to  reverse  the  iud2:nient  of  the  Circuit 
Court,  for  refusing  to  set  aside  the  verdict.  In  this  case, 
the  weight  of  evidence  appears  to  have  been  with  the  de- 

(198) 


MAT  TERM,  1828.  170 


Hoagland  and  Others  v.  Moore. 


fendants;  but  that  alone  is  not  sufficient  to  require  a  re- 
versal of  the  judgment. 

The  instructions  of. the  Circuit  Court  come  next  under 
consideration.  It  is  a  well  settled  principle,  that,  where 
there  is  a  special  contract,  one  party  can  not  perform  a 
part  of  the  contract,  and,  before  an  entire  performance, 
sue  and  recover  in  indebitatis  assumpsit  for  the  part  he 
has  performed.  But  it  is  a  rule  equally  well  settled,  that 
if  he  has  performed  a  part  of  the  contract,  and  is  pre- 
vented from  completing  it  by  the  acts  or  the  failure  of  the 
other  party,  he  may  abandon  the  contract  and  recover  for 
what  he  has  done.  Testing  these  instructions,  as  to  the 
plaintiff's  right  of  action,  by  these  rules,  it  is  evident,  in 
the  language  of  the  instructions,  that,  if  the  defendants 
failed  to  comply  with  the  contract  in  the  first  instance, 
and  if  that  was  the  reason  why  the  plaintiff  refused  to 
comply  on  his  part,  he  had  a  right  to  recover  for  so  much 
of  his  property  as  the  defendants  had  received,  and  had 
failed  to  return.  Taking  this  as  an  entire  contract  for 
the  corn  and  the  hogs,  and  supposing,  as  the  plaintiff's 
daughters  testified,  that  the  defendants  were  to  pay  to  the 
plaintiff  20  dollars  immediately,  and  to  give  their  notes 
for  the  balance ;  now,  if  after  the  delivery  of  the  hogs 
and  a  part  of  the  corn,  the  plaintiff  refused  to  deliver  the 
balance  of  the  corn,  unless  the  20  dollars  were  paid,  and 
the  defendants  failed  to  pay  it,  the  plaintiff  would  not  be 
bound  to  deliver  the  balance  of  the  corn ;  but  might  con- 
sider the  special  contract  at  an  end,  and  recover  the  value 
of  his  property,  so  received  and  retained  by  the  defend- 
ants. The  evidence  that  the  plaintiff  gave  the  non-pay- 
ment of  the  20  dollars  as  a  reason  for  not  delivering  the 
balance  of  the  corn,  appears  to  ns  as  of  a  very  doubtful 
character;  but  that  does  not  affect  the  instructions  of  the 
Circuit  Court.  That  Court  could  not  say  there  was  no 
evidence  as  to  that  fact;  and  surely  it  would  not  be  ex- 
pected that  this  Court  would  disregard  this  evidence,  and 
treat  these  instructions  as  if  no  such  fact  appeared  in  the 

(199) 


170-171     SUrREME  COURT  OF  INDIANA. 


Chinn  v.  Kusi5ell,  in  Error. 


case.  As  this  was  a  fact  that  the  evidence  conduced  to 
establish,  it  was  correct  in  the  Circuit  Court  to  inform  the 
jury  what  the  law  was,  if  this  fact  should  be  found 
[*171]  by  them.  This  part  of  the  *instructions  must 
therefore  be  considered  as  unobjectionable.  The 
balance  of  the  instructions,  as  to  the  quantity  of  corn  for 
which  the  plaintiff  had  a  right  to  recover,  if  he  could  re- 
cover at  all,  is  as  favorable  to  the  defendants  as  they  could 
reasonably  ask.  If  the  plaintiff  proved  a  right  of  action, 
he  was  certainly  entitled  to  the  value  of  the  corn  received 
by  the  defendants,  unless  that  corn  had  been  fed  to  his- 
hogs,  while  they  were  in  the  possession  of  the  defend- 
ants. If  the  defendants  had  made  use  of  this  corn  for 
their  own  benefit,  the  plaintiff  would  be  entitled  to  the 
value  of  it. 

We  are  therefore  of  opinion,  that,  on  both  these  points, 
the  instructions  of  the  Circuit  Court  were  correct. 

Per  Curiam. — The  judgment  is  atiirmed,  with  1  percent. 
damages  and  costs. 

Thompson  and  Nelson^  for  the  appellant. 

Farnhnm  and  Thornton,  for  the  appellee. 


Chinn  v.  Russell,  in  Error. 

Costs — Both  Parties — Succeed  (o). 

THE  defendant  in  replevin  avowed  the  taking  of  the 
goods,  by  virtue  of  his  office  as  sheriff,  on  an  execution 
against  a  third  person  to  whom  they  belonged.  The 
plaintiff  pleaded  propertj'  in  himself.  The  jury  found 
tliat  some  of  the  goods  were  the  plaintiff's  and  that  some 
were  not  his.  Judgment  on  the  verdict,  and  that  each 
party  should  recover  his  costs.  Held,  that,  as  each  party 
had  succeeded,  each  was  entitled  to  costs;  and  that  the 
judgment  was  right.     Powell  v.  Hinsdale,  5  Mass.  343. 

(a)  Post,  187,  267,  415 . 

(200) 


MAY  TERM,  1828.  171-172 

Perkins  and  Another  v.  Smith,  in  Error. 

Perkins  and  Another  y.  Smith,  in  Error. 

Bond — Breach  of— Judgment — Practice. 

DEBT  on  a  bond,  and  judgment  by  default.  The 
plaintiff  suggested,  that  the  bond  was  conditioned  for  the 
delivery  of  property  taken  on  execution,  and  assigned  as 
a  breach    that   the    condition    was   broken.     Judgment, 

without  a  jury,  for  the  amount  of  the  execution. 
[*172]    Held,    that,    supposing    the    ^assignment   of  the 

breach  to  be  only  informal,  and  the  want  of  a 
judgment  for  the  penalty  to  be  unavailing  in  error,  yet 
the  breach  sho-uld  have  been  found,  and  the  damages 
assessed,  by  a  jury.  R.  C.  1824,  p.  293 ;  Clark  v.  Goodwin, 
1  Blackf.  74  (1). 

(1)  GildeweU  v.  M'Gaughly,  Nov.  term,  1830,  post;  R  C.  1831,  p.  404; 
il/orris  v.  Price,  Nov.  term,  1831,  post. 


Thomasson  v.  Tucker's  Administrators,  in  Error. 

Evidence — Pleadings  of  Co-Parties. 

THE  answer  of  one  defendant  in  chancery  is  no  evi- 
dence against  his  co-defendant. 


Weaver  v  Bryan,  in  Error. 

Judgment — Re-entered — Practice. 

IN  order  to  have  a  judgment  re-entered,  under  the 
statute  of  1827  relative  to  the  burned  records  of  Dearborn 
county,  the  notice  to  the  defendant,  which  answers  the 
purposes  both  of  a  writ  and  declaration,  must  state  the 
term  at  which  the  judgment  was  originally  rendered- 

(201) 


172-173    SUPREME  COUUT  OF  INDIANA. 


Chiun  r.  Russell. 


Chinn  i\  Russell. 

Former  Recovery — Different  Parties. — Goods  found  in  possession  of 
A.,  an  execution-defendant,  were  levied  on  Hy  the  sheriff.  B.  claimed 
the  goods  as  his,  and  a  jury,  summoned  to  try  the  right  of  property,  found 
they  belonged  to  A.  Held,  in  replevin  by  B.  against  the  sheriff,  that  the 
finding  of  the  jury  was  not  conclusive  against  B. 

Quare,  whether  A.'s  unconditional  possession  of  goods,  which  had  beenisold 
by  him  to  B.,  renders  the  sale  per  ye  fraudulent  and  void,  or  is  only  evi- 
dence of  fraud,  as  to  A.'s  creditors. 

Replevin — Right  of  Possession. — Replevin  lies  by  a  person  not  having 
the  actual  possession  of  the  goods  when  taken,  provided  he  have  at  the 
time  .the  general  property  and  the  right  of  immediate  possession  (a). 

Same — Right  of  Execution-Defendant. — Any  person,  except  the  execu- 
tion-defendant, may  have  replevin  under  our  statute,  for  his  goods  taken 
in  execution  (b). 

[*173]  *APPEAL  from  the  Marion  Circuit  Court.— 
Replevin  by  W.  S.  Chinn  against  A.  W.  Russell. 
The  defendant  filed  two  avowries  and  one  plea.  The 
plain  tilt'  pleaded  to  the  avowries  and  replied  to  the  plea. 
Demurrer  to  the  plaintiff's  pleas,  and  issue  on  his  repli- 
cation.    Judgment  on  the  demurrer  for  the  defendant. 

Blackford,  J. — This  is  an  action  of  replevin.  There 
are  two  avowries.  The  first  states  that  Kinnard  recov- 
ered a  judgment  against  Thomas  Chinn,  and  sued  out  an 
execution  against  his  goods ;  that  the  defendant,  as  sherifi", 
by  virtue  of  the  execution,  took  the  goods,  they  being  in 
the  actual  possession  of  Thomas  Chinn  ;  that  the  present 
plaintift'  and  another  person  claimed  the  property,  and 
the  jury,  summoned  to  tr}'  the  right,  found  it  to  be  in 
the  plaintift',  but  the  Circuit  Court,  on  appeal,  determined 
the  goods  to  belong  to  Thomas  Chinn.  The  defendant 
also  averred  the  property  to  be  in  Thomas  Chinn.  The 
second  avowr}^  is  the  same  as  the  first,  except  that  it  says 
nothing  as  to  the  trial  of  the  right  of  property.  The  de- 
tendant  also  pleads  that  the  goods  belong  to  Thomas 
Cliinn,  and  not  to  the  plaintift'.      To  the  avowries,  the 

(h)  51  Ind.  1  ;  38  Id.  461 

(b)  51  Ind.  395 ;  51  Id.  1  ;  38  Id.  461. 

(202) 


MAY  TERM,  1828.  173-174 

Chinn  v.  Russell. 

plaintift' pleads  that  the  goods  are  his;  that  Thomas  Chinn 
had  possession  as  his  bailee ;  and  that  the  plaintiff  always 
had  the  right  to  reduce  them  into  possession  at  any  time. 
To  the  plea  of  property  in  another,  the  plaintitf  replies 
property  in  himself.  The  defendant  demurs  to  the  pleas 
of  the  plaintiff,  and  joins  issue  on  his  replication. 

It  is  contended,  that  the  determination  of  the  Court,  as 
to  the  right  of  property,  was  a  justification  to  the  sheriff'. 
This  position  can  not  be  supported.  We  are  not  aware 
that  these  trials  of  the  right  of  property  have  been  ever 
held  conclusive.  If  the  goods  be  found  to  be  the  debt- 
or's, the  inquisition  may  show  that  the  sheriff''s  conduct 
in  selling  was  not  malicious,  but  it  is  no  bar  to  the  action 
of  the  owner.  Townsend  v.  Phillips,  10  Johns.  R.  98  (1). 
It  is  also  contended,  that  the  plaintiff''s  permitting  the 
goods  to  remain  with  Thomas  Chinn  was  fraudulent,  and 
rendered  them  subject  to  the  execution.  For  this  are 
cited,  Hamilton  v.  Russell,  1  Cranch,  309,  and  Sturtevant 
v.  Ballard,  9  Johns.  R.  337.  These  are  cases  of  goods 
sold  by  the  execution-defendant,  where  it  was  held,  that 
the  continuance  of  possession  by  the  seller  without  con- 
dition, renders  the  sale  void  as  to  creditors.  There 
[*174]  are  other  cases,  holding  this  ^circumstance  as  only 
an  evidence  of  fraud  (2).  The  present  case,  how- 
ever, is  altogether  different  from  those  referred  to ;  there 
being  no  pretence  here  that  the  plaintiff'  purchased  the 
property  of  the  execution-debtor;  and  the  authorities 
cited  have,  therefore,  no  application. 

The  principal  questions  arising  in  this  cause  are  these 
two:  First,  can  a  person,  not  having  the  actual  possession 
of  goods  when  taken,  recover  in  replevin,  provided  he 
have  the  general  property,  and  the  right  of  immediate 
possession?  secondly,  can  a  person,  not  the  execution- 
defendant,  have  replevin  under  our  statute  for  goods 
tiiken  in  execution?  Our  opinion  is  in  the  afhrmative  on 
both  these  points.  As  to  the  first,  it  is  evident  from  the 
cases  of  Ward  v.  Macaidey,  4  T.  R.  489,  and   Putnam  V. 

(203) 


174-175    SUPREME  COURT  OF  INDIANA. 

Chinn  v.  Kusscll. 

Wyley,  8  Johns.  R.  432,  cited  by  the  defendant  himself, 
and  Gordon  v.  Harper,  7  T.  R.  9,  that  the  phiiiitift'  couhl 
recover,  under  those  circumstances,  in  trover,  or  trespass 
de  bonis  asportntis.  And  we  know  of  no  ground,  as  re- 
spects this  point,  on  which  replevin  can  1,0  distinguished 
from  trover  or  trespass.  As  to  the  second  question,  we. 
are  of  opinion  that,  let  the  common  law  be  as  it  may,  our 
statute  authorizes  the  proceeding.  According  to  the  sta- 
tute, whenever  any  person  tortiously  takes  and  unlawfully 
detains,  or  lawfully  acquires  and  unlawfully  detains,  the 
goods  of  another,  the  owner  may  replevy.  One  excep- 
tion is  made,  and  no  more;  which  is,  that  the  law  shall 
not  extend  to  execution-defendants.  R.  C.  1824,  p.  337. 
The  case  we  are  considerino;  is  one  of  takiuiir  and  detain- 
ing  without  sufficient  authority  ;  and  the  plaintiff  is  not 
an  execution-defendant:  it  is  impossible,  therefore,  to  say 
that  the  statute  does  not  apply  to  it  (8). 

Per  Curiam. — The  judgment  is  reversed,  and  the  pre- 
ceedings  subsequent  to  the  joinder  in  demurrer  aru  :  i, 
aside,  with  costs.  Cause  remanded,  with  directions  to 
permit  the  appellee  to  withdraw  his  demurrer  and  reply 
to  the  pleas  of  the  plaintiff. 

Hurst  and  Gregg,  for  the  appellant. 

Fletcher  and  Brown,  for  the  appellee. 

(1)  Sed  vide  R.  C.  1831.  pp.  237,  238.  Vide,  also,  Bosky  v.  Farqmr  ante» 
p.  61,  and  notes  (1)  and  (2).     2  Tidd's  Prac.  8th  Lond.  Ed'.  1047. 

(2)  It  has  been  a  great  question,  whether  the  delitor's  fontinuanoe 
[••'"175]  in  possession  of  *goods,  after  his  sale  of  them  to  another,  or  to  be 
considered  conclusive  or  only  prima  facie  evidence  of  frmid,  as  to 
creditors.  That  the  evidence  is  conclusive,  is  decided  not  only  by  the  (  ases 
named  in  the  text,  but  by  the  previous  one  of  Edwards  v.  Harbcii,  2  T.  R. 
587,  and  some  others.  There  are  many  subsequent  cases,  iiowever,  iiolding 
the  contrary  opinion,  whicii  must  be  considered  as  having  almost  subverted 
the  authority  of  those  from  which  ihey  differ.  "The  conclusion,"  says 
Chancellor  Kent,  "from  the  more  recent  English  cases  would  seem  to  be, 
that  though  a  continuance  in  possession  by  the  vendor  or  mortgagor  be 
prima. facie  a  badge  of  fraud,  if  the  chattels  sold  or  mortgaged  be  transfera- 
ble from  hand  to  hand,  yet  the  presumption  of  fraud  arising  from  that  cir- 
cumstance, may  be  rebutted  by  explanations  showing  the  transaction  to  be 
fair  and  honest,  and  giving  a  reasonable  account  of  the  retention  of  the  pos- 
session. The  question  of  fraud  arising  in  such  cases,  is  not  an  absolute  in- 
ference of  law,  but  one  of  fact  for  a  jury  ;. and  if  the  i)ersonal  chattels  savor 
of  the  realtv,  as,  for  instance,  the  engines,  utensils,  and  uiachinerv,  belong- 

{204) 


MAY  TERM,  1828.  175-176 


Chinn  v.  Russell. 


iiig  to  n  nianafacturiiig  est:il)lisliment,  no  presumption  of  fraud  will  arise 
from  the  want  of  delivery."  2  Kent's  Comm.  2  Ed.  p.  520.  Twyne's  ease 
is  the  leading  one  on  this  subject.  3  Co.  Rep.  80.  Vide,  also,  A'lc/cZ  v.  Raw- 
liniion,  2  Bos.  &  Pull.  o9  ;  Hoffman  v.  P'dl,  5  Esp.  R.  22;  Arundell  v.  Phipps, 
10  Ves.  139,  146,  147,  151;aSW  v.  Brown,  1  Taunt.  381  ;  Dawsm  v.  Wood,  3 
id.  256;  Watkins  v.  Birch,  4  id.  823;  Meed  v.  Blndes,  5  id.  212;  Leonard  v. 
Baker,  1  Maule  &  Selw.  251  ;  Benton  v.  Thornhill,  7  Taunt.  149  ;  Guthrie  v. 
Wood,  1  Stark.  R.  367  ;  Jezeph  v.  Inffram,  8  Taunt.  838  ;  Armstrong  v.  Baldock, 
1  Gow's  R.  33;  irooc/tTH/a/i  v.  Baldock,  8  Taunt.  676;  Stewart  v.  Lombe,  1 
Brod.  &  Bing.  506  ;  Storer  v.  Hunter,  3  Barn.  &  Cress.  368  ;  Latimer  v.  Basten, 
4  id.  652  ;  Eastwood  v.  Brown,  Ry.  &  Mood.  312.  In  the  case  last  cited,  de- 
cided in  1825,  Abbott,  C.  J.  says:  "I  shall  leave  it  to  the  jury  to  say, 
whether,  under  all  the  circumstances  of  this  case,  they  are  satisfied  that  the 
assignment  was  made  with  the  design  of  delaying  or  defeating  creditors  in 
the  recovery  of  their  debts.  I  can  not  agree  to  the  doctrine  laid  down  in 
the  case  cited  by  Mr.  Scarlett.  [  Wordall  v.  Smith,  1  Campb.  333.]  The  cir- 
cumstance of  an  assignor  who  is  under  pecuniary  embarrassments,  remain- 
ing in  possession  of  the  property  assigned,  is  always  suspicious ;  but  if  it 
does  not  appear,  from  other  facts  in  the  case,  that  this  takes  placg  under  a 
fraudulent  arrangement  between  the  parties,  for  the  purpose  of  delaying 
creditors,  I  am  of  opinion  that  it  is  not  of  itself  a  conclusive  badge  of  fraud. 
1  have  no  tloubt  that  a  purcha.se  of  a  house  and  furniture,  with  an  imme- 
diate demise  of  that  house  and  furniture  to  the  vendor,  may  be  good,  if  there 
be  no  intention  to  defeat  or  delay  creditors  by  the  transaction,  and  it  is  ma- 
terial that  in  this  case  it  does  not  appear  that  any  actions  by  other  creditors 
had  been  brought." 

That  the  continuance  of  possession  is  only  prima  facie  evidence  of  fraud 
is  the  law  in  New  York.  Barrow  v.  Paxton,  5  Johns.  R.  258 ;  Beal  v.  Quern- 
sey,  8  id.  452.  It  was,  in  Sfurtevant  v.  Ballard,  9  Johns.  R.  337,  decided 
to  be  conclusive  ;  but  that  case  is  overruled,  and  the  doctrine  of  the  previous 
decisions  is  adhered  to.  Vide  Butts  v.  Swartwood,  2  Cowen,  431  ;  Bissell  v. 
Hopkins,  3  Cowen,  166  and  note  ;  Jennings  v.  Carter,  2  Wend.  449;  Divver  v. 
M'Laughlin,  id.  596  ;  Hall  v.  Tuttle,8  id.  375. 

The  law  in  Massachusetts  is  like  tliat  in  New  York.  Brooks  v.  Pcnvers, 
15  Mass.  244  ;  iV.  E.  M.  I.  Co.  v.  Chandler,  16  id.  279  ;  Bartlett  v.  Williams, 
1  Pick.  288;  Budlam  v.  Tucker,  id.  399;  Homes  v.  Crane,  2  id.  607;  Wheeler, 
V.  Train,  3  id.  255  ;  Ward  v.  Sumner,  5  id.  59  ;  Shumivay  v.  Butter,  7  id.  56 ; 
S.  C.  8  id.  443. 

In  Penn.sylvania  the  law  is  otherwise.    There,  the  continuance  of 

[  ■■'176]      possession  ■■■"is  conclusive  evidence  of  fraud,  and  per  se  avoids  the 

sale,  as  to  creditors  and  purchasers.     Dawes  v.  Cope,  4  Binn.  258 ; 

Glow  V.  Woods,  5.  S.  &  R.  278 ;   Bahh  v.  Clemson,  10  id.  419;  Shatv  v.  Levy,  17 

id.  99  ;  Houer  v.  Geesman,  id.  251. 

Vide  2  Kent's  Comm.  2d.  ed.  512-532,  where  the  reader  may  find  a  gen- 
eral review  of  the  English  and  American  decisions  on  this  litigated  sub- 
ject. Vide,  also,  2  Stark,  Ev.  617,  and  note ;  Chitty  on  Contracts,  227,  and 
note;  Roscoe  on  Ev.  485;  Jordan  v.  Turner,  Nov.  terra,  1833,  post.  There 
is  an  English  decision  on  this  subject,  as  late  as  1832,  the  substance  of  which 
is  as  follows  :  Want  of  possession  accompanying  a  conveyance  of  chattels 
does  not  of  itself  constitute  fraud,  and  avoid  the  deed  as  against  creditors; 
it  is  only  evidence  (or  as  the  cases  term  it,  o  budge)  of  fraud.  And  where  a 
bill  of  sale  of  household  furniture  was  given  as  a  security  for  a  bona  fide  ad- 
vance of  money,  and  provided  that  if  the  debtor  should  repay  the  money  by 
installments,  on  certain  days,  the  deed  should  be  void,  but  in  default  of  pay- 
ment of  any  oi  the  installments,  the  creditor  might  take  possession  and  sell 
oflthe  goods  ;  and  that  untd  such  default,  the  debtor  might  keep  possession, — 
the  deed^was  held  not  to  be  fraudulent  as  against  a  judgment-creditor  by 
reason  of  the  debtor's  remaining  in  possession,  being  given  for  a  good  con- 


(205) 


176-177   SUPREME  COURT  OF  INDIANA. 


Chinn  v.  Russell. 


sideration,  and  his  continuance  of  possession  being  in  terms  provided  for. 
(2  W.  Bl.  701;  1  B.  Moore.  189  ;  2  Marsh,  427.  The  dictum  of  BuLLER,  J., 
in  Eduxirdx  v.  Harben.  2  T.  R.  587,  was  relied  on  contra  ;)  Marti nclale  v.  Booth, 
3  Barn.  &  Adol.  498  ;'9  Lond.  Law  Mag.  429. 

(3)  The  statute  of  1831  i.s  the  same  with  that  of  1824  which  is  cited  in  the 
text.  R.  C.  1831,  p.  424.  Vide  Parsley  v.  Hudon,  May  term,  1834,  post. 
It  is  .said  In-  Blackstone,  that  replevin  lies  on/// in  the  case  of  a  wrongful  dis- 
tress. 3  Bl.  Comm.  146.  It  has  been  since  shown,  however,  that  this  is  a 
mistake;  aii<l  that  rei)levin  lies  for  any  t<irtionj<  iuLinrj  of  goods  from  the  pos- 
session of  the  ])laintiflr.  Sli<uninti  v.  Sha)inon,  1  8ch.  Si  Lef.  327  ;  Pajif/hrirn 
V.  Patridye,  7  Johns.  R.  140.  By  the  common  law,  there  must  be  an  actual 
and  wrongful  takiiuj  of  the  goods  from  the  plaintifTto  authori/.e  the  action 
of  replevin.  Shannon  v.  Shannon,  supra;  Meany  v.  Head,  1  Mason,  322  ;  Gal- 
loimy  V.  Bird,  4  Bing.  209.  In  some  of  the  states,  replevin  lies  in  any -case 
where  one  man  claims  goods  which  are  in  the  possession  of  another  no  mat- 
ter how  the  latter'ii  possession  uas  obtained.  It  is  so  in  Pennsylvania.  Weaver 
V.  Lawrence,  1  Dall.  156;  Shearick  v.  Huber,  6  Binn.  2;  Stauyhton  v.  Rappalo, 
3S.  &  R.  .562;  Keite  v.  Boyd,  16  id.  300.  So  in  Massachusetts.  Baker  v. 
Fales,  16  Mass.  147.     So  in  Maine.     Seavcr  v.  Dinyley,  4  Greenl.  315. 

The  following  is  a  late  decision  in  New  York :  Eleplevin  against  a  sher- 
iff. Avowry,  that  the  defendant  took  the  goods  by  virtue  of  an  execution 
against  G.,  they  being  found  in  G's  possession.  Demurrer  to  the  avowry. 
Per  Curiam. — "By  the  pleadings  it  is  admitted  that,  at  the  time  of  the  taking, 
the  propertv  was  in  the  plaintiff,  and  the  posses.sion  in  Griswold,  the  de- 
fendant in  the  execution  ;  and  the  question  is,  whether  replevin  lies?  Since 
the  case  of  Pangburn  v.  Pdridye,  7  Johns.  R.  140,  it  has  been  settled  that 
replevin  lies  where  trespass  de  bonis  aRportatis  will  lie.  The  plainitfi"  must 
have  property  general  or  special,  and  possession  either  actual  or  construc- 
tive. In  Thompson  v.  Button,  14  Johns.  R.  84,  Chief  Justice  Thompson  lays 
down  the  broad  proposition,  that  as  a  general  principle  it  is  undoubtedly 
true  that  goods  taken  in  execution  are  in  the  custody  of  the  law,  and  can 
not  be  taken  out  of  such  custody  when  the  officer  has  found  them  in,  and 
taken  them«out  of,  the  possession  of  the  defendant  in  the  execution.  In 
Qark  V.  Skinner,  20  Johns.  R.  467,  Mr.  Justice  Platt  has  shown  very  conclu- 
sivelv,  that  that  proposition  is  correct  only  as  between  the  defendant  in 
such  execution  and  the  officer;  and  in  such  a  case,  it  was  applied  in  Gard- 
7}ery.  Campbell,  15  Johns.  R.  401.  A  variety  of  cases  are  stated  by 
[*177]  Mr.  Justice  ■■•■Platt,  in  which  an  action  of  trespass  would  be  a  very 
inadequate  remedy.  The  case  of  Thompson  v.  Button,  was_  decided 
upon  the  principle  of  Pangburn  v.  Patridge,  and  was  a  case  where  the 
property  taken  by  virtue  of  the  execution  was  taken  from  the  possession  of 
the  plaintiff  in  the  replevin,  and  not  from  the  po.ssession  of  the  defendant 
in  the  execution.  The  same  principle  laid  down  in  Pangburn  v.  Patridge 
■was  recognized  in  the  late  cases  of  Marshall  v.  Davis,  1  Wend.  109,  and 
Hall  v.  Tuttle,  2  id.  475.  The  plaintiff  having  the  property  in  the  goods  in 
question,  had  the  constructive  possession  ;  for  the  property  draw.s  to  it  the 
pos-session.  The  plaintiff  therefore  had  the  right  to  take  possession  at 
pleasure,  and  could  have  sustained  trespass  ;  and  replevin  and  trespass  in 
such  cases  are  concurrent  remedies.  The  plaintiff  is  entitled  to  judgment 
on  the  demurrer,  with  leave  to  the  defendant  to  amend  on  payment  of 
costs."     Dunham  v.  Wyckoff.  3  Wend.  280. 

In  Massachusetts,  by  statute,  replevin  lies  for  goods  attached  on  mesne 
process  or  taken  in  execution,  provided  the  debtor  in  the  original  suit  is 
not  the  i)laiutiff  in  replevin.  Therefore,  if  A's  goods  are  taken  in  execution 
for  B's  debt.  A.,  may  maintain  replevin  against  the  officer.  Oliver's  Pre- 
cedents, 464. 

END  OF  MAY  TERM,  1828. 

(206) 


r*i78]  *  CASES 

ARGUED  AlslO  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF  INDIANA, 


AT  INDIANAPOLIS,   NOVEMBER  TERM,    1828,   IN   THE  THIRTEENTH  YEAB  OF 

THE  STATE. 


Cutler  v.  Cox. 

Kes  Adjiidicata — Pleading. — If  a  plea  of  former  recovery  contain  suffi- 
cient matter  to  show  that  the  causes  of  action  in  the  two  suits  are  the 
same,  and  that  the  merits  were  determined  in  the  first  case,  the  plea  is 
good;  and  it  is  not  essential  to  the  validity  of  the  plea,  that  the  forms  of 
the  two  actions  be  the  same  («). 

Same — Contract — Tort. — A  plea  of  former  recovery  to  an  action  on  the 
case  founded  on  tort,  can  not  be  objected  to  merely  because  the  first  ac- 
tion was  covenant ;    the  causes  of  action  appearing  to  be  the  same, 

Contract  of  Warranty— Breach  of — Remedy — Action. — In  the  sale  of 
goods  with  an  express  warranty  as  to  their  quality,  assumpsit  lies  for 
the  breach  of  contract  not  under  seal,  or  case  lies  for  the  commission  of 
the  tort.  So,  if  an  injury  be  occasioned  by  the  negligence  of  an  attorney^ 
or  of  a  stage  proprietor,  assumpsit  lies  on  the  undertaking  or  case  upon 
the  duty.  (b). 

Contract — Fraud — Breach. — If  the  breach  of  contract,  for  which  an  ac- 
tion of  covenant  is  brought,  was  accompanied  with  fraud,  the  fraud  is  a 
proper  subject  of  inquiry  in  that  action,  and  may  be  specially  averred  in 
the  declaration. 

(«)  See  49  Ind.  309  ;  12  Id.  629  ;  68  Id.  240  ;  45  Id.  489  ;  37  Id.  264. 
(6)  9  Id.  572. 

(207) 


178  179    SUPREME  COURT  OF  INDIANA. 

Cutler  V.  Cox. 

Former  Recovery — Pleading — Record. — If  a  plea  of  former  recovery 
aver  the  causes  of  action  to  be  the  same,  and  the  record  do  not  show  them 
to  be  different,  the  averment,  on  a  demurrer  to  the  plea,  must  be  taken 
as  true. 

Contract — Fraud — Remedy — Practice. — When  an  action  on  the  ca*  in 
brought  for  fraud  in  the  breach  of  a  contract,  the  gist  of  the  action  is  the 
fraud  committed  at  the  time  of  the  breach ;  and  if  the  j^laintiff  can  not 
maintain  an  action  for  the  fraud  committed  at  that  time,  no  subsequent 
damages  will  enable  him  to  maintain  it. 

Res  Adjudicata — Tort — Contract. — To  an  action  of  covenant  for  not 

furnishing  such  a  boat  as  is  required  by  a  contract  under  seal,  accord 

and  satisfaction  may  be  pleaded  in  bar;   and  if,  on  the  trial  of  an 

P179]  "'issue  to  a  replication  denying  the  plea,  there  be  a  verdict  and 
judgment  for  the  defendant,  the  merits  of  the  case  are  settled,  and 
the  judgment  is  a  bar  to  any  future  action,  though  founded  on  tort,  for 
the  same  cause. 

Pleadino — Answer — Practice. — If  there  be  two  pleas,  eacli  to  the  whole 
cause  of  action,  and  one  on  demurrer  be  adjudged  good,  the  plaintiff  can 
proceed  no  further. 

ERROR  to  the  Johnson  Circuit  Court. 

Blackford,  J. — This  was  an  action  on  the  case  founded 
on  tort.  The  declaration  contains  four  counts.  The 
first  three  state  that  the  parties  entered  into  an  agree- 
ment under  seal,  by  which  the  defendant  became  bound  to 
buikl  for  the  plaintiff  a  good  and  sufficient  New-Orleans 
boat,  for  a  certain  and  fair  price;  that  the  boat  was  built 
and  delivered,  and  the  price  paid;  that  at  the  time  of 
delivery  there  were  defects  in  the  boat,  which  were  under 
the  water  and  not  discoverable;  that  on  taking  the  boat 
aoout  two  miles  from  the  place  of  delivery,  it  sank  in 
consequence  of  those  defects.  The  first  two  counts  aver 
that  the  defects  were  known  to  the  defendant;  and  the 
third  contains  an  express  warranty.  The  fourth  count 
states,  that  the  plaintift"  bargained  with  the  defendant  to 
buy  of  him  a  New-Orleans  boat  for  a  certain  price;  that 
the  price  was  accordingly  paid,  and  the  boat  delivered  as 
a  good  and  sufficient  New  Orleans  boat ;  the  averments  in 
this  fourth  count  as  to  the  defects,  the  defendant's  knowl- 
edge, and  the  loss  of  the  boat,  are  similar  to  those  in  the 

(208) 


NOVEMBER  TERM,  1828.  179-180 


Cutler  V.  Cox. 


first  two  counts.  All  the  counts  allege  special  damage  to 
a  large  amount,  occasioned  by  the  loss  of  the  boat. 

There  are  two  special  pleas  in  bar.  The  first  is  sub- 
stantially as  follows:  that  the  plaintifli'  had  previously 
impleaded  the  defendant  in  a  plea  of  covenant,  to  recover 
damages  for  the  non-performance  of  the  agreements  in 
the  several  counts  of  the  present  declaration  mentioned ; 
that  the  defendant  pleaded  an  accord  and  satisfaction,  on 
which  issue  was  joined;  that  the  parties  produced  their 
evidence  on  the  trial  of  that  issue;  and  that  the  verdict 
and  judgment  were  in  favor  of  the  defendant,  and  were 
still  in  force.  The  plea  also  avers  that  the  New-Orleans 
boat,  mentioned  in  the  action  of  covenant,  is  the  same 
with  that  in  this  suit  mentioned;  and  that  the  sealed 
agreement,  set  forth  in  the  action  of  covenant,  and  the 
agreements,  breaches,  and  oft'ences,  in  the  present  decla- 
ration mentioned,  are  the  same  identical  agree- 
[*180]  ments  and  breaches,  and  not  other  ^difi'erent 
agreements,  ofiences,  or  breaches.  There  was  a 
general  demurrer  to  this  plea,  and  judgment  for  the 
defendant. 

As  to  form,  this  plea  is  very  defective ;  but  with  that 
objection  we  have  nothing  to  do  on  a  general  demurrer. 
If  it  contains  sufficient  matter  to  show  that  the  causes  of 
action  in  the  two  suits  were  the  same,  and  that  the  merits 
were  determined  in  the  first  case,  the  plea  is  a  good  bar. 

The  first  inquiry  then  is,  were  the  causes  of  action  the 
same?  All  the  counts  in  the  present  action,  it  is  true, 
are  founded  in  tort;  but,  at  the  same  time,  they  all  set 
out  a  contract,  and  show  that  this  action  is  brought  for  a 
deceit  in  the  performance  of  that  contract.  The  first 
three  counts  explicitly  state  the  contract  to  be  under  seal; 
the  fourth  is  silent  as  to  the  seal,  but  the  plea  avers  the 
agreement  here  stated  to  be  the  same  sealed  agreement 
mentioned  in  the  other  accounts,  and  the  demurrer  ad- 
mits it  to  be  so.  The  counts,  also,  all  show  that  the  con- 
tract was  for  the  delivery  of  an  Orleans  boat,  and  that 
Vol.  II.— 14  (209) 


180-181     SUPREME  COURT  OF  INDIANA. 

Cutler  r.  Cox. 

tho  injury  complained  of,  consisted  in  the  boat's  not 
being  as  good  as  the  plaintiff  had  a  right  to  expect.  It 
is  consequently  plain,  that  these  causes  of  complaint, 
here  set  out  in  this  action  on  the  case,  are  the  letritimate 
foundation  of  an  action  of  covenant;  being  the  breaches 
of  a  contract  under  seal.  Fraud  to  be  sure  is  alleged  in 
these  breaches,  but  that  circumstance  tends  to  strengthen 
the  idea  of  a  violation  of  the  contract.  This  fraud  in  the 
breaches  shows,  perhaps,  that  an  action  on  the  case  for 
the  deceit  might  have  been  supported;  but  it  does  not 
furnish  the  shadow  of  a  reason' against  -the  propriety  of 
an  action  of  covenant,  for  the  fraudulent  breach  of  con- 
tract. That  there  should  be  two  different  forms  of  action 
for  a  redress  of  the  injury  here  complained  of,  is  nothing 
extraordinary.  Similar  occurrences  are  not  unfrequent. 
For  example,  if  in  the  sale  of  goods  ihexe  be  an  express 
warranty  as  to  their  qualit}^  assumpsit  lies  for  the  breach 
of  contract  not  under  seal,  or  case  lies  for  the  commission 
of  the  tort.  So,  if  an  injury  be  occasioned  by  the  negli- 
gence of  an  attorney,  by  that  of  a  coach  proprietor,  &c., 
you  may  bring  assumpsit  on  the  undertaking,  or  case 
upon  the  duty.  Other  instances  might  easily  be  given. 
The  circumstance,  then,  that  the  former  was  an  action  of 
covenant  is  no  evidence  that  the  same  injuries  may  not 
have  been  redressed  by  it,  for  which  this  action  on  the 

case  is  brought. 
[*181]        *The  plaintiff  contends,  that,  to  the  plea  in  a 

former  suit,  he  could  not  reply  the  fraud  set  out 
in  the  present  one.  Whether  he  could  or  not,  we  shall 
not  stop  to  inquire.  The  fraud  in  the  breach  of  contract 
for  which  this  action  on  the  case  is  brought,  was  a  proper 
subject  of  inquiry  in  the  action  of  covenant.  The  plain- 
tiff was  bound,  when  he  resorted  to  the  action  of  eov- 
enant,  to  adopt  the  measures  best  calculated  to  secure  an 
examination,  in  that  suit,  not  only  of  the  breach  of  con- 
tract, but  of  the  fraud  connected  with  it.  His  declaration 
was  the  appropriate  place  for  any  special  averment  of  the 

(210) 


NOVEMBER  TERM,  1828.  181-182: 


Cutler  I'.  Cox. 


fraud,  like  that  he  speaks  of,  which  might  be  deemed  es- 
sential to  a  full  investi_scation  of  the  subject.  If  the  fraud 
was  not  averred  nor  investigated  in  the  tirst  suit,  the  plain- 
tiff sliould  iiave  shown  it;  and  then  it  would  have  been 
[troper  to  examine  whether  that  could  make  any  dift'er- 
eiice.  No  such  tiling,  however,  is  shown  ;  on  the  con- 
trary, as  the  breach  and  offences  in  the  second  action 
com.plained  of,  are  averred  by  the  plea  to  be  identically 
the  same  with  those  complained  of  in  the  first  action; 
and  as  this  fact  is  not  only  uncontradicted  by  the  record, 
but  admitted  by  the  demurrer  to  the  plea;  we  are  bound 
to  presume  that  all  the  fraud  alleged  in  the  present  action 
on  the  case,  w^as  included  in  the  former  action  of  covenant. 

The  plaintiff  further  contends,  that  in  the  action  of  cov- 
enant the  subsequent  damages  could  not  have  been  known; 
and  that,  therefore,  for  those  at  least  this  action  will  lie. 
This  position  is  as  untenable  as  the  other.  The  gist  of 
the  action  on  the  case  is  the  fraud  committed  at  the  time 
of  the  breach  of  contract  in  the  delivery  of  the  boat.  If 
the  plaintiff  can  not  maintain  his  action  for  that  fraud, 
committed  at  that  time,  no  subsequent  damages  will  en- 
able him  to  maintain  it,  because  those  damages  can  not 
of  themselves  constitute  a  cause  of  action.  This  princi- 
ple is  established  by  a  very  earl}-  case.  A  man  brought 
an  action  of  assault  and  battery  for  beating  his  head  upon 
the  ground,  and  recovered.  Afterwards,  a  piece  of  his 
skull  came  out  in  consequence  of  the  same  battery,  and 
he  sued  again.  The  former  recovery,  however,  was  held 
to  be  a  bar  to  the  subsequent  suit.  Fetter  v.  Beale,  Salk. 
11.  That  decision  is  referred  to  wnth  approbation  by 
Justice  Ilolroyd,  in  the  late  case  of  Howell  v.  Young,  5 
Barn.  &  Cress.  259.  The  subsequent  damages, 
[-^182]  therefore,  not  constituting  a  ground  of  action ,*fur- 
nish  no  reason  for  supposing  the  cause  of  the  pres- 
ent suit  to  be  different  from  that  of  the  former  one. 

From  the  view  which  we  have  now  taken  of  this  case, 
the  record  does  not  appear  to  show  any  difference  in  these 

(211) 


182  SUPREME  COURT  OF  INDIANA. 

Cutler  ('.  Cox. 

causes  of  action.  To  establish  the  difference,  the  plain- 
tiff relies  on  the  facts,  that  the  tirst  suit  is  covenant,  and 
the  second  case ;  that  the  gist  of  the  one  is  contract,  and 
of  the  other  fraud  ;  and  that  daniag-es,  covered  by  the  last 
suit,  have  accrued  since  the  termination  of  the  first.  These 
circumstances  have  been  examined,  and  we  find  them  all 
to  be  perfectly  consistent  with  the  idea,  that  the  causes 
of  the  two  suits  are  sub»tantially  the  same.  The  record, 
therefore,  showing  no  difference  in  the  causes  of  these 
actions,  and  the  plea  averring  them  to  be  the  same,  the 
plaintiff'  in  making  the  objection,  should  have  denied,  by 
a  special  replication,  that  they  were  the  same,  and  have 
thus  submitted  the  question  to  the  determination  of  a  jury. 
Instead  of  doing  so,  however,  he  demurred  to  the  plea, 
and  thus  trusted  the  fate  of  his  objection  to  the  face  of 
the  pleadings.  That  being  the  case,  and  the  record  not 
showing  the  causes  of  action  to  be  different,  they  must 
be  considered  to  be  the  same. 

The  second  inquiry  is,  were  the  merits  of  the  cause  tried 
in  the  action  of  covenant?  The  plea  was  accord  and  sat- 
isfaction. The  plaintiff  contends  that  as  his  action  was 
founded  on  a  deed,  this  plea  was  no  bar.  lie  did  not, 
however,  trust  to  a  demurrer;  and,  if  he  had  so  trusted, 
lie  would  have  failed.  The  objection  is  not  tenable.  The 
action  of  covenant  was  for  a  wrong  in  the  furnishing  of 
a  boat,  and  the  object  was  to  recover  damages  for  that 
■wrong.  But  if  the  plaintiff"  had  already  received  a  satis- 
faction for  the  injury  complained  of,  his  right  of  action 
was  gone;  and  the  defendant  could  certainly  plead  the 
satisfaction  in  bar.  This  is  t':e  decision  in  Blake's  case,, 
6  Coke,  44.  The  plaintiff',  in  answer  to  the  plea,  had  a 
right  to  show  that  it  was  not  true;  or  that  the  satisfac- 
tion was  not  a  legal  one.  He  chose  to  rest  his  case  on 
the  former  ground,  and  accordingl}'  replied  to  the  plea 
by  denying  the  accord  and  satisfaction.  Issue  was  joined 
upon  that  replication;  botli  parties  produced  their  evi- 
dence at  the  trial;  and  a  verdict  and  judgment  were  reu- 

(212) 


NOVEMBER  TERM,  1828.  182-183 

M'Coy  and  Another  v.  Elder. 

dered  for  the  defendant.  This  settled  the  merits  of  the 
action  of  covenant ;  a  competent  tribunal  having  deter- 
mined that  for  the  injuries  there  complained  of, 
[*183]  the  ^plaintiff  had  received  a  full  compensation. 
It  settles  also  the  present  action  on  the  case;  be- 
cause the  substantial  causes  of  the  two  actions  being  the 
same,  as  has  been  already  shown,  the  decision  which  put 
an  end  to  the  one,  must  of  course  be  a  bar  to  the  other. 
Nemo  bis  vexari  pro  eadem  causa,  is  one  of  the  first  maxims 
of  the  law. 

The  plea  therefore  in  this  cause,  of  a  former  recovery, 
is  a  sufficient  bar.  There  is  another  special  plea,  but  it 
is  unnecessary  to  examine  it.  One  plea  to  the  action, 
being  adjudged  good  on  demurrer,  the  plaintiff"  can  pro- 
ceed no  further. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Hester,  Sweetser  and  Gregg,  for  the  plaintiff". 

Whitcomb  and  Fletcher,  for  the  defendant. 


M'CoY  and  Another  v.  Elder. 

Sheriff — Form  of  Execution. — An  execution  commanding  the  sheriff 
that  of  the  goods  of  A.,  B.,  and  C,  he  make,  &c.,  which  D.  had  recovered 
against  the  said  A.  and  others,  is  not  objectionable  for  not  stating  the  re- 
covery to  have  been  against  the  said  defendants  A.,  B.,  and  C,  the  ex- 
pressions being  substantially  the  same. 

Execution — Debtor  and  Bail. — A  joint  execution  may  issue  against  a 
judgment-debtor  and  his  replevin-surety. 

Damages — Measure  of — Breach  of  Replevin-Bond.— Debt  on  a  bond 
for  the  delivery  of  goods,  taken  on  an  execution  which  had  issued  against 
a  judgment-debtor  and  his  replevin-surety.  Judgment,  on  demurrer,  for 
the  plaintiff.  Held,  that  the  measure  of  damages,  if  they  did  not  exceed 
the  penalty  of  the  bond,  was  the  amount  due  on  the  original  judgment, 
with  interest  and  costs;  but  that  the  assessment  could  not  exceed  the 
penalty  (a). 

(a)  Post  268. 

(213) 


183-184  SUPREME  COURT  OF  INDIANA. 

.  M'Coy  and  Another  v.  Elder. 

APPEAL  from  the  Decatur  Circuit  Court. — The  bond 
on  which  this  suit  was  brought,  was  executed  by  A.  C. 
M'Coy  and  G.  S.  M'Coy,  the  defendants  below,  to  A. 
Elder,  the  plaintiiF  below,  conditioned  for  the  delivery, 
at  a  particular  time  and  place,  of  certain  property  to  the 
sherifi",  upon  wliicli  ho  had  levied  an  execution  in  favor 
of  the  plaintiff. 

Scott,  J. — Debt  on  a  delivery  bond.  Demurrer  to  the 
declaration,  and  judgment  for  the  plaintitf  for  the  pen- 
alty of  the  bond,  to  be  discharged  by  the  payment  of  the 
damages  sustained.  Writ  of  inquiry  waved  and  damages 
assessed  by  the  Court,  by  consent  of  the  parties.  The 
record  of  the  original  judgment,  on  which  the 
[*184]  execution  and  replevin-bond  were  ^founded,  was 
produced  in  evidence,  and  final  judgment  ren- 
dered for  the  amount  appearing  to  be  due. 

It  is  objected  by  the  plaintiff  in  error  that  the  execu- 
tion is  void,  because  it  refers  to  a  judgment  against  An- 
gus C.  M'Coy  and  others,  not  named,  and  the  sheriff  is 
commanded  to  levy  it  on  the  property  of  Angus  C. 
M'Coy,  John  C.  M'Coy,  James  Hamilton,  Cyrus  Hamil- 
ton, and  John  S.  Forsyth.  In  the  execution,  as  set  out  in 
the  bill -of  exceptions,  the  command  to  the  sheriff'  is  in 
these  words:  You  are  hereby  commanded  that  of  the 
goods,  chattels,  lands  and  tenements,  of  Angus  C.  M'Coy, 
James  Hamilton,  Cyrus  Hamilton,  John  C.  M'Coy  (and 
John  S.  Forsyth  as  security,)  you  cause  to  be  made,  to 
satisfy  Andrew  Elder,  the  sum  of  212  dollars,  which  the 
said  Andrew  Elder,  late  in  our  Decatur  Circuit  Court, 
recovered  against  the  said  Angus  C.  M'Coy  and  others. 
There  is  no  ambiguit}'  in  this  phraseology;  the  execution- 
defendants  are  all  named  in  the  first  instance^  and  the 
allegation  that  the  amount  to  be  made  had  been  recov- 
ered against  the  said  Angus  C.  M'Coy  and  others,  is  tan- 
tamount to  saying  it  "had  been  recovered  against  the  said 
defendants,  repeating  all  their  names. 

It  is  further  objected  that  the  execution  is  aa^ai-nst  live 

(214) 


NOVEMBEli  TERM,  1828.  184-185 

M'Coy  and  Another  i'.  Elder. 

defendants,  and  the  judgment  on  which  it  was  issued  is 
against  four  only.  There  is  nothing  in  this  objection. 
The  judgment  is  against  Angus  C.  M'Coy,  James  Ham- 
ilton, Cyrus  Hamilton,  and  John  C.  M'Coy;  and,  after 
judgment  rendered,  John  S.  Forsyth  became  replevin- 
surety;  the  execution  therefore  very  properly  issued 
against  the  five. 

The  only  remaining  objection,  which  we  deem  it  neces- 
sary to  notice  particularly,  is,  that  the  judgment,  replevin- 
bond,  and  execution,  were  not  proper  evidence  of  the 
amount  which  the  plaintiff  was  entitled  to  recover.  Had 
the  amount  of  the  orio;inal  iudo'ment  exceeded  the  i^en- 
alty  of  the  delivery-bond,  and  had  judgment  been  ren- 
dered for  that  amount,  there  would  have  been  some 
ground  for  this  objection.  The  statute  authorizing  de- 
livery-bonds, contemplates  a  bond  in  double  the  amount 
of  the  value  of  the  property  seized ;  that  value  is  a  mat- 
ter to  be  settled  between  the  siierifi:"  and  the  execution- 
defendant  at  the  time  of  giving  the  bond,  and  the  pen- 
alty of  the  bond  is  a  limit  to  the  damages,  which 
the  defendant  and   his  sureties  agree  to  pay  in   case  of 

failure  to  deliver  the  property. 
[*185]      ^Below  this  amount,  we  know  of  no  measure  of 
damages,  better  adapted  to  the  purposes  of  justice, 
than  the  original  judgment  with  interests  and  costs  (1). 

Several  other  points  have  been  noticed  by  the  plaintiff 
in  error,  as  defects  in  the  proceedings,  wdiich,  if  they  are 
defects  at  all,  should  have  been  taken  advantage  of  at  an 
earlier  stage  of  the  proceedings.  The  judgment  of  the 
Circuit  Court  must  be  affirmed. 

Pe7'  Curiam.. — The  judgment  is  affirmed,  with  b  jper  cent. 
damages  and  costs. 

Stevens,  for  the  appellants. 
Lane  and  Smith  for  the  appellee. 

(1)  The  statute  now  is,  that  in  cases  like  that  in  the  text,  the  amount 
due  on  the  execution  shall  be  assessed  in  favor  of  the  plaintiff,  provided 
the  propertv  so  taken  be  of  sufficient  value  to  satisfy  the  same,  and  if  not, 

(215) 


185-186   SUPREME  COURT  OF  INDIANA. 


Mitchell  V.  Sheldon  and  Another. 


then   the  value  of  the   property  so  taken,  together  with  ten  per  centum 
thereon.     R.  C.  1831,  p.  239. 

It  is  decided,  that,  under  this  act,  the  plaintiff  is  entitled  to  the  10  per 
cent,  damages,  as  well  where  the  value  of  the  property  is  sufficient  to  satisfy 
the  execution,  as  where  it  is  not.  Mitchell  el  al.  v.  JJenbo,  May  term,  1833 
The  law  is  the  same  in  the  case  of  delivery-bonds  taken  hy  constables, 
K  C.  1831,  p.  107. 


Mitchell  v.  Sheldon  and  Another. 

Consideration — Failure  of — Pleading. — If,  to  assumpsit  on  a  promis- 
sory note,  the  defendant  plead  a  failure  of  consideration  on  account  of 
the  non-delivery  of  goods,  the  plaintiff  may  reply  generally,  that  the  con- 
sideration has  not  failed.  The  note  is  prima  facie  evidence  of  a  consider- 
ation ;  and  the  want  or  failure  of  consideration,  in  such  case,  must  be 
pleaded  and  proved  (o)- 

Practice — Trial  and  Issues. — Assumpsit  on  a  promissory  note.  Two 
pleas:  1st,  non-assumpsit,  and  issue;  2d,  as  to  part,  a  failure  of  consid- 
eration. Replication  as  to  the  second  plea,  demurrer  and  judgment  for 
the  plaintiff.  Held,  that,  whilst  the  first  issue  was  undisposed  of,  the 
plaintiff  could  not  have  final  judgment  for  the  amount  of  the  note  (6). 

ERROR  to  the  Harrison  Circuit  Court. — Sheldon  and 
Dixon  were  the  plaintiffs  below,  and  Mitchell  was  the 
defendant. 

IIoLMAN,  J. — Assumpsit  on  a  promissoiy  note  for  246 
dolhirs  and  48  cents.  Pleas,  first,  non-assumpsit,  and 
issue;  secondly,  that  the  note  was  given  upon  the  con- 
sideration, that  the  plaintiffs  agreed  to  put  up  and  deliver 
to  said  defendant,  goods,  wares,  and  merchandise,  to  the 
value  of  said  sum  by  invoice ;  and  the  said  defend- 
[*186]  ant  avers,  that  the  said  plaintifls  failed  to  ^deliver 
by  invoice  a  part  of  said  goods,  wares,  and  mer- 
chandise, to  the  value  of  100  dollars;  which  the  said  de- 
fendant is  ready  to  verify.  Wherefore  he  says,  that  the 
consideration  of  the  note  aforesaid,  to  the  value -of  said 
goods,  wares,  and  merchandise,  not  delivered  as  afore- 
said, has  failed  And  as  to  the  residue  of  said  demand, 
in  said  declaration  mentioned,  the  defendant  snys-notli- 

(a)  5  Blkf.  334 ;  6  Id.  I'll. 

(b)  36  Ind.  241  ;  48  Id.  107  ;  50  Id.  529 ;  54  Id.  161 ;  55  /(/.  194 ;  60  Id.  95. 

(216) 


NOVEMBER  TERM,  1828.  186 

Mitchell  r.  Sheldon  and  Another. 

ing  in  bar  or  preclusion  thereof;  nor  can  he  deny  that 
tor  said  residue  he  did  undertake  and  promise,  as  charged 
in  said  declaration.  Replication,  that  the  plaintiffs  ought 
not  to  be  barred  from  maintaining  said  action  for  the 
full  amount  mentioned  in  said  note,  because  they  sa}^, 
that  the  consideration  of  the  said  note  hath  not  failed, 
nor  has  any  part  thereof,  in  manner  and  form  as  the  de- 
fendant hath  stated,  &c.  Special  demurrer  by  the  defend- 
ant, because  the  replication  does  not  specially  anwer  the 
allegations  in  the  plea,  nor  aver  the  delivery  of  the 
goods,  &c. 

The  Circuit  Court  overruled  the  demurrer,  and,  gave 
judgment  for  the  plaintiff  for  the  amount  of  the  note, 
without  taking  any  notice  of  the  issue  on  the  plea  of 
non-assumpsit.  This  was  wrong;  and  this  is  the  only 
error  in  the  case;  for  the  replication  to  the  special  plea 
is  sufHcient.  The  note  is  prima  facie  evidence  of  a  con- 
sideration, and  when  a  -want  or  failure  of  consideration 
is  relied  on,  it  must  be  pleaded  and  proved.  The  non- 
deliver}^  of  the  goods,  mentioned  in  the  special  plea,  con- 
stituted the  failure  of  consideration  set  up  in  this  case, 
and  it  lay  upon  the  defendant  to  prove  that  the  goods 
were  not  delivered.  Consequently,  a  general  replication 
was  all  that  could  be  required  of  the  plaintiffs.  But 
final  judgment  should  not  have  been  given,  until  some 
disposition  had  been  made  of  the  first  issue.  It  is  true, 
that  all  the  amount  of  the  note  but  100  dollars,  is  admit- 
ted to  be  due  to  the  plaintiffs,  ^'et  as  the  plea  of  non- 
assumpsit  extends  to  the  whole  cause  of  action,  the  claim 
of  the  plaintiffs  to  the  100  dollars  may  be  controverted 
under  it:  the  issue  on  that  plea  should,  therefore,  have 
been  submitted  to  a  jury. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Nelson  and  Fecruhavi,  for  the  plaintiff. 
Dewey,  for  the  defeiulants. 


187  SUPREME  COURT  OF  IXDIANA. 


Wrieht  v.  Mathews  and  Another. 


[*187]  "j^Wright  r.  Mathews  and  Another. 

Witness — Interested — Voire  Dire — By  whom  Examined. — It  a  witness 
be  objected  to  as  interested,  and  his  interest  be  proved  by  other  witnesses, 
the  party  calling  the  witness  has  no  right  to  examine  him  on  his  voire 
dire;  that  right  belonging  alone  to  the  party  who  makes  the  objection. 

Replevin — Right  to  a  Part — Pro  Tanto. — If  an  action  of  replevin  be 
brought  for  taking  several  articles,  and,  on  an  issue  as  to  the  plaintiff's 
property  in  them,  he  only  prove  himself  entitled  to  a  part, — the  defend- 
ant has  a  right  to  a  return  of  the  others  and  to  damages  for  the  taking 
of  them.  In  such  case  each  party  succeeds,  and  each  is  entitled  to  his 
costs. 

Rent — Distress — Avowry — Pleading. — An  avowry  for  rent  due  need  not 
show  that  a  warrant,  founded  on  oath,  had  been  taken  out  before  making 
the  distress ;  nor  that  the  goods  distrained  belonged  to  the  tenant ;  nor 
need  it  set  out  the  particulars  of  the  landlord's  title  (a). 

ERROR  to  the  Wajne  Circuit  Court. 

Blackford,  J, — William  and  Jonathan  Mathews  brought 
an  action  of  replevin  against  William  AVright.  The  de- 
claration states,  that,  in  a  certain  house  in  the  town  of 
Milton,  county  of  Waj'ne,  the  defendant  forcibly'  took 
and  unlawfully  detained  from  the  plaintitFs  17  planes,  3 
hand-saws,  2  tenon-saws,  8  paring  chisels,  6  mortising 
chisels,  1  bureau,  and  a  variety  of  other  articles  particu- 
larly described  in  the  declaration,  alleged  by  the  plaintiffs 
to  be  their  joint  property'. 

The  defendant  avowed  the  taking  as  a  distress  for  rent. 
The  avowry  is  as  follows:  And  the  said  William  Wright 
comes  and  defends  the  wrong  and  injury,  when,  kc,  and 
well  avows  the  taking  of  the  said  goods  and  chattels  in 
the  said  declaration  mentioned,  in  the  said  house  in 
which,  &c.,  and  justly,  &c.,  because  he  says  that  one  Na- 
thaniel Peak  for  a  long  time,  to  wit,  for  the  space  of  one 
year  next  before  and  ending  on  the  first  day  of  June, 
1827,  and  from  thence  until  and  at  the  said  time  when, 
&c.,  held  and  enjoyed  the  said  house  in  which,  &c.,  with 
the  appurtenances,  as  tenant  thereof  to  the  said  William 

(a)  1  Ind.  54;  6  Id.  4U ;  2  Id.  579. 

(218) 


KOVEMBEU  TERM,  1828.  187-188 

Wright  V.  Mathews  and  Another. 

AVriglit,  by  virtue  of  a  certain  demise  thereof  to  liim  the 
said  Nathaniel  Peak  tlieretofore  made,  at  and  under  a 
certain  yearly  rent,  to  wit,  the  yearly  rent  of  18  dollars, 
payable  at  the  expiration  of  the  year;  and  because  the 
said  sum  of  18  dollars,  the  rent, aforesaid  for  the  space  of 
one  year,  ending  as  aforesaid  on  the  said  first  day  of  June, 
1827,  and  from  thence  until  and  at  the  said  time  when, 

&c.,Avas  due  and  in  arrear  from  the  said  Nathaniel 
[*188]    Peak  to  the  said  WilliamWright ;  he  the  said  ^=de- 

fendant  well  avows  the  takina:  of  the  said  oroods 
and  chattels  in  the  said  house,  in  which,  &c.,  as  for  and 
in  the  name  of  a  distress  for  the  said  rent  so  due  and  in 
arrear  to  the  said  William  Wright  as  aforesaid,  and  which 
still  remains  due  and  unpaid.  And  this  he  is  ready  to 
verify;  wherefore  he  prays  judgment  and  a  return  of  the 
said  goods  and  chattels  to  be  adjudged  to  him,  &c.  The 
defendant  also  pleaded,  1st,  property  in  himself;  2d,  prop- 
erty in  Nathaniel  Peak.  The  plaintiffs  demurred  gen- 
erally to  the  avowry ;  and  replied  to  the  pleas,  property 
in  themselves. 

On  the  demurrer  to  the  avowry,  the  Court  rendered 
judgment  in  favor  of  the  plaintiffs.  At  the  trial  of  the 
issues  joined  on  the  pleas,  a  witness  of  the  defendant  was 
objected  to  as  being  interested.  The  plaintiffs  proved 
the  incompetency,  by  other  witnesses,  to  the  satisfaction 
of  the  Court.  After  which,  the  defendant  offered  to 
swear  the  witness  on  his  voire  dire,  for  the  purpose  of 
showing  that  he  was  not  interested.  The  plaintiffs  ob- 
jected to  this,  and  the  Court  sustained  the  objection. 
When  the  testimony  was  closed,  the  Court  instructed  the 
jury,  that  if  the  plaintiffs  had  supported  their  case  as  to 
any  one  article  of  property  s[)eeified  in  the  declaration, 
although  the}"  had  failed  as  to  all  the  residue,  they  were 
entitled  to  a  verdict  for  so  much.  The  verdict  was  as 
follows:  "We  the  jury  have  agreed,  and  find  for  the 
plaintiffs,  and  assess  their  damages  at  5  dollars."     Judg- 

(219) 


188-180    SUPREME  COUKT  OF  INDIANA. 


Wright  V.  Mathews  and  Another. 


nient  was  accordingly  rendered  for  the  damages  so  found, 
together  with  the  costs  of  suit. 

Wright  is  the  plaintiff  in  error,  and  assigns  the  follow- 
ing reasons  for  a  reversal  of  the  judgment  against  him: 
1st,  that  the  witness  should  have  been  sworn  on  his  coh^e 
dire;  2d,  that  tlie  instructions  to  the  jury  were  incorrect; 
3d,  that  the  demurrer  to  the  avowry  should  not  have  been 
sustained. 

There  is  nothing  in  the  first  objection.  A  witness  can 
never  be  examined  on  the  voire  dire  as  to  his  interest,  un- 
less called  on  by  the  party  objecting  to  him.  This  point 
is  expressly  decided  in  Viiicent  v.  Lessee  of  Huff,  4  Serg.  & 
11.  298. 

As  to  the  second  objection,  the  instructions  of  the 
Court  ought  not,  certainly,  to  have  stopped  where  they 
did.  The  defendant  in  replevin  is  an  actor.  He  is  en- 
titled to  a  return  of  all  the  goods  which  the  plaintiff  does 
not  prove  himself  authorized  to  retain.  When 
[*189]  the  Court,  therefore,  informed  the  *jury  that  the 
plaintiffs  were  entitled  to  a  verdict  as  to  the  part 
proved,  though  they  had  supported  their  case  only  as  to 
a  single  one  of  the  articles  mentioned  in  the  declaration, 
they  ought  to  have  gone  further  and  informed  the  jury, 
also,  that,  as  to  the  residue  of  the  articles,  it  was  their 
duty  to  find  for  the  defendant.  The  issues  in  fact  were 
upon  the  plaintiffs'  property  in  the  goods.  Their  proof 
of  propert}^  in  a  part,  entitled  them  to  damages  on  ac- 
count of  the  unlawful  taking  of  that  part.  Their  failure 
of  proof  as  to  the  residue,  entitled  the  dislendant  to  a  re- 
turn thereof,  and  also  to  damnges  on  account  of  this  part 
of  the  goods  having  been  improperly  taken  on  the  writ. 
In  such  a  case  each  part}'  succeeds,  and,  under  the  statute 
giving  costs  to  the  successful  party,  each  is  entitled  to  his 
c-osts.  Powell  V.  Ilin^dale,  5  Mass.  343.  The  instructions 
of  the  Cou^'t  must  be  presumed  to  have  been  :i|)plieable  to 
the  case;  and  it  is  easy  to  conceive,  that  they  nuiy  have 
misled  the  jury  by  inducing  them  to  confine  their  verdict 

(220) 


NOVEMBER  TERM,  1828.  189-190 

Wrio'ht  V.  Mathews  and  Another. 


to  the  beuetit  of  tlie  plaintitt^,  instead  of  extending  it  also 
to  the  beneiit  of  the  defendant. 

The  third  en-or  assigned  is,  that  the  demnrrer  to  the 
avowry  was  inn.roperly  sustained.  The  first  object,on 
made  by  the  defendants  in  error  to  the  avowry,  is  that  ,t 

Ls  not  show  that  a  — >»■. '--"'"\  "f'";' :t;.r 
taken  out  by  tlie  landlord  before  making  the  d.st.ess 
i     rL,  thit  the  statute  of  18-24  requires  an  oath  and 
warrant  previously  to  the  distress;  but  -«  ;'»  "°yj' ^^ 
that  this  eircumstance  need  change  the  estabhshed  foin 
o    the  avowrv.     Before  the  statute  of  frauds  the  verbal 
plomtse  of  an   executor  was  obligatory;    th,s  law  was 
Utered  bv  that  statute,  and  it  became  necessar.  for  the 
lise  t-o  be  in  writing.     The  form  o    the  deelarat.on. 
however,  continued  as  it  was  previously  to  the  statute 
So    in  tke  present  case,  these  statutable  requ.s.t.ons  to 
tl  validity  of  a  distress,  like  that  of  writ.ng  to  the  yahd- 
tv  of  an  executor's  promise,  may  be  considered  as  mat- 
ll^ot  evidence,  and  not  of  pleading.     Another  ob,ec  .on 
of  the  defendants  in  error  to  the  avowry  is,  that  it  does 
"lot     e'ative  their  averment  of  property  in  the  goods. 
:„!-    1     nothing   in    this   objection.     The   goods  wei-e 
found  on  the  piemises  of  the  tenant,  and  were  conse- 
n   e  „ly  subject  p.-i™«/««>,  to  be  distrained  by  the  land- 
'         ^  lord  tor  rent  arrear,  without  regard  to  whom   hej 
r*190]    belonged.     Bradby  on  *Distress,  106.     If    he^e 
*■        ^    .oods  were  within  any  of  the  rules  of  exemption 
prescribed  by  the  law,  the  plaintiffs  below  were  bound  to 
how  that  circumstance  by  a  plea  ♦<>  ««;™-;^  ,,  ^^^^ 
was  the  course  pursued  in  Francts  -^f'"' ^,«,»  ';,lf  f. 
Had  the  avowant  averred,  as  it  is  contended  he  »hou  d 
have  done,  that  the  goods  distrained  were  the  property 
of  the  teniuit,  the  avowry  would   have  been  without  a 
precedent  in  the  history  of  the  action  of.'^'^""^ 
'    The  plaintiff  in  error,  however,  ,s  ""^'"ken  « hen  he 
supposes  this  avowry  to  be  good  at  common  la    .     It  can 
not  be  supported  under  that  law,  because  the  title  of  the 

/001  \ 


190  SUPREME  COUKT  OF  INDIANA. 

Wright  V.  MatJiews  and  Another. 

landlord  to  the  premises,  on  which  the  distress  was  nuido, 
is  not  set  out  in  the  avowry.  "2  Will.  Saund.  284.  Il 
would  not  be  good  in  New  York  in  consequence  of  th;it 
defect.  Harrison  v.  JWInfosh,  1  Johns.  R.  380,  384.  But 
in  England,  now,  by  the  statute  of  11  Geo.  2,  the  hmd- 
lord  is  excused  from  setting  forth  his  title  further  than  is 
done  in  this  avowry.  2  Wil'.  S  u:  d.  284.  We  have  a 
statute  similar  to  that  of  Geo.  2,  wl.icli  authorizes  the 
same  mode  of  proceeding,  R.  C.  1824,  p.  103;  : ml  it  is 
this  statute  of  ours,  and  not  the  common  law,  which  au- 
thorizes the  avowant  to  omit  the  particulars  of  his  title. 

It  has  now  been  shown  that  the  avowry,  in  this  case, 
can  not  be  objected  to  for  not  averring  the  previous  issu- 
ing of  a  warrant,  founded  on  the  landlord's  oath,  because 
that  is  a  matter  of  evidence,  not  of  pleading;  nor  for  not 
averring  the  goods  to  be  the  tenant's  property,  bee  i use  no 
law  requires  such  an  averment;  nor  is  it  dofectivc  on  ac- 
count of  the  landlord's  title  to  the  premises  not  being 
specially  stated,  because  the  statute  has  dispensed  with 
that  formalit}'.  The  consequence  is,  the  demurrer  to  the 
avowry  should  have  been  overruled. 

It  will  be  recollected  that  it  appears  by  this  record,  that 
there  were  two  issues  in  fact  and  one  in  law,  all  of  which 
were  determined  in  favor  of  the  plaintiffs  below.  The 
verdict  can  not  be  sustained,  because  the  instructions  to 
the  jury  were  incorrect;  and  the  judgment  on  demurrer 
is  erroneous,  because  the  avowry  is  good. 

Per  Curiam. — The  judgment  is  reversed,  and  the  pro- 
ceedings on  the  issues  are  set  aside,  with  costs.  Cause 
remanded,  &c. 

Smith,  for  the  plaintiff. 
Bariden,  for  the  defendants. 


(222) 


NOVEMBER  TERM,  1828.  191 


I'nffles  r.  Graves. 


[*191J  *Ungles  V.  Graves. 

Evidence — Execution  of  Deed. — The  subscribing  witness  to  a  deed  re- 
sided in  Ohio,  and  the  acknowledgment  had  been  taken  there  before  the 
mayor  of  Cincinnati.  Held,  tliat  the  deed, — on  proof  that  the  grantor 
had  executed  it,  and  that  the  witnesses  had  subscribed  it,  in  the  presence 
of  the  witness, — was  admissible  in  evidence  (o). 

Rent— Constable — Levy. — A  constable  is  virtually  within  the  provisions 
of  the  statute,  requiring  sherifls  to  pay  rent  before  the  removal  of  goods 
taken  in  execution  on  demised  premises;  and,  when  sued  for  improperly 
paying  rent,  he  is  bound  to  give  some  evidence  that  the  rent  was  due. 

ERROR  to  the  Marion  Circuit  Court. 

HoLMAN,  J. — Graves  obtained  a  judgment  before  a  jus- 
tice of  the  peace  against  Rufus  Jennison.  On  this  judg- 
ment lie  took  out  an  execution,  which  he  placed  in  the 
hands  of  Ungles,  a  constable.  Tingles  returned,  that,  out 
of  the  property  of  said  Jennison,  he  had  made  the  sum 
of  57  dollars  and  31  cents;  all  of  which,  except  the  costs, 
he  had. paid  to  Samuel  Jennison,  en  notice:  which  notice, 
being  a  claim  of  said  Samuel  Jennison's  to  the  sum  of  75 
dollars,  for  two  quarters'  rent  of  the  premises  on  which 
the  property  was  executed,  was  made  a  part  of  the  con- 
stable's return.  Graves  then  sued  out  a  scire  facias,  re- 
quiring Ungles  to  show  cause  why  he  should  not  pay,  on 
said  execution,  the  money  thus  paid  to  Samuel  Jennison. 
To  this  scire  facias,  the  notice  and  claim  of  Samuel  Jen- 
nison were  pleaded;  with  an  averment  that  the  said  Sam- 
uel Jennison,  the  landlord  of  the  premises  on  which  the 
property  was  executed,  proved  to  the  satisfaction  of  the 
constable,  that  he,  as  landlord,  was  entitled  to  said  money, 
for  rent  then  due,  which  money  was  paid  accordingly. 
The  justice  of  the  peace  gave  judgment  in  favor  of  Ung- 
les. Graves  appealed  to  the  Circuit  Court,  and  obtaitied 
a  judgment  against  Ungles  for  the  amount  he  paid  to  the 
landlord. 

By  a  bill  of  exceptions  we  learn,  that,  ou  the  trial  be- 

(a)  7  Blkf.  176,355;  4  W.  522. 

(223) 


191-192    SUPREME  COURT  OF  INDiAN^A. 


Ungles  V.  Graves. 


fore  the  Circuit  Court,  Ungles  introduced  a  patent  from 
the  United  States  to  David  E,  Wade,  for  the  premises  on 
which  the  property  was  executed;  and  offered  in  evi- 
dence a  deed  from  Wade  to  Samuel  Jennison  for  the 
said  premises,  attested  by  Isaac  G.  Burnett  and  William 
Jones,  and  acknowledged  before  Isaac  G.  Bur- 
[*192]  nett,  *mayor  of  Cincinnati;  which  deed  was  re- 
jected by  the  Circuit  Court.  He  then  proved  by 
Rufus  Jennison,  that  Wade  signed,  sealed,  and  acknowl- 
edged said  deed;  and  that  Isaac  G.  Burnett  and  William 
Jones,  who  now  reside  in  the  city  of  Cincinnati,  state  of 
Ohio,  subscribed  their  names  as  witnesses  to  said  deed  in 
his  presence.  This  evidence  was  also  rejected  by  the 
Circuit  Court;  but  we  think  it  should  have  been  ad- 
mitted. 

A  constable,  though  not  named,  is,  virtually,  within 
the  provisions  of  the  act  of  assembly,  that  requires  sher- 
iffs to  pay  rent  due  on  demised  premises,  before  prop- 
erty taken  in  execution  on  said  premises  is  removed; 
and,  when  sued  for  paying  rent  improperly,  he  is  bound 
to  give  some  evidence  that  the  rent  was  due.  3  Stark. 
Ev.'l354;  Keightley  \.  Birch,  3  Campb.  521.  The  land- 
lord's title  to  the  premises  is  a  principal  feature  in  the 
officer's  defence;  and  we  think  the  deed  from  Wade  to 
Samuel  Jennison,  was  sufficiently  proved  hy  the  testi- 
mony of  Rufus  Jennison.  When  the  subscribing-wit- 
nesses  to  a  deed  reside  in  another  state,  proof  of  their 
hand  writing  is  generally  deemed  sufficient.  In  some 
cases,  however,  proof  of  the  hand  writing  of  the  obligor 
or  grantor  has  also  been  required.  In  this  case,  the  evi- 
dence embraces  both  these  requisitions.  Rufus  Jennison, 
who  is  a  competent  witness,  testifies  to  the  execution  of 
the  deed  by  Wade,  and  to  the  attestation  of  it  by  the 
subscribing-witnesses  in  his  presence;  which  fullj'  an- 
swers all  that  is  required  in  any  case  we  have  yet  seen. 
See  a  variety  of  cases  on  this  subject  cited  in  1  Stark.  Ev. 
338-342. 

(224) 


NOVEMBER  TERM,  1828.  192-193 


The  State,  on  the  relation  of  Merrill,  &c.,  v.  M'Clane  and  Others. 


Per   Curiam. — The  judgment   is  reversed  with   costs. 
Cause  remanded,  &c. 
Bro2vn,  for  the  plaintiff. 
Fletcher,  for  the  defendant. 


The  State,  on  the  reLation  of  Merrill,  &c.  v.  M'Clane 
and  Others. 

Sheriff's  Bond— Action  on— Relator. — An  action  on  a  sheriff's  bond, 
for  not  collecting  militia  fines  due  to  the  county  seminaries,  lies  in  the 
name  of  the  state  on  the  relation  of  the  treasurer,  who  is  the  trustee  of 
the  fund. 
Same— Pleading— Payment  of  Penalty.— It   is  unnecessary,   in  the 
declaration   on   a   sherifT's  bond,   to   aver   a  non-payment   of   the 
[*193]   ^penalty.     Aliter,  in  the  case  of  penal  bonds  payable  by  one  pri- 
vate person  to  another. 

APPEAL' from  the  Wayne  Circuit  Court. 

Scott,  J.— An  action  was  instituted  in  the  Wayne  Cir- 
cuit Court  by  the  state  of  Indiana,  on  the  relation  of  Sam- 
uel Merrill,  treasurer,  for  the  use  of  the  county  seminaries, 
against  William  M'Clane,  sheriff  of  Wayne  county,  and 
his  sureties,  on  his  official  bond.  The  declaration  charges 
that  certain  lists  of  fines  for  non-performance  of  military 
duty  had  been  put  into  the  hands  of  the  defendant 
M'Clane,  as  sheriff,  for  collection ;  and  that  he  had  ne- 
glected and  refused  to  collect  the  same.  The  defendants 
demurred  generally  to  the  declaration,  and  had  judgment 
in  the  Circuit  Court. 

It  is  alleged  in  support  of  the  demurrer,  that  no  person 
appeared  as  a  relator  who  was  responsible  for  costs.  This 
objection  to  the  declaration  we  think  insufficient.  The 
fines  mentioned  in  the  declaration  belong,  when  collected, 
to  the  seminary  fund:  Samuel  Merrill,  as  treasurer,  is  the 
trustee  of  that  fund;  he  is,  therefore,  the  proper  person 
to  appear  as  relator  in  such  cases.  It  is  a  general  rule 
that  the  unsuccessful  party  pays  costs,  but  there  are  some 
Vol.  IL— 15  (225) 


193-194   SUPREME  COURT  OF  INDIANA. 

The  State  on  the  relation  of  Merrill,  &c.,  v.  M'Clane  and  Others. 

exceptions  to  that  rule.  It  is  a  general  rule,  also,  that,  in 
actions  brought  on  official  bonds,  some  person  must  ap- 
pear as  relator  who  has  a  beneficial  interest  in  the  suit, 
and  who  is  responsible  for  the  costs,  where  costs  are  le- 
gally demandable ;  but  it  does  not  follow  that  no  man 
can  appear  as  relator  in  cases  where  the  law  allows  no 
costs. 

Another,  and  we  presume  the  principal  ground  taken 
in  support  of  the  demurrer,  is,  that  the  declaration  con- 
tains no  averment  of  the  non-payment  of  the  penalty  of 
the  bond  by  the  defendants  or  either  of  them.  This 
ground  is  also  untenable.  In  actions  on  common  penal 
bonds  for  the  payment  of  money,  or  for  the  performance 
of  some  specific  duty  to  any  private  person,  it  is  neces- 
sary, in  the  declaration,  to  aver  the  non-payment  of  the 
penalty  as  well  as  the  breach  of  the  condition  ;  and  such 
are  all  the  forms;  but  a  sheriff's  official  bond  is  made  for 
a  different  purpose  and  is  subject  to  a  different  rule.  Offi- 
cial bonds  are  made  to  the  state  for  the  benefit  of  all  per- 
sons, who  maybe  aggrieved  by  the  negligence  or  malcon- 
duct  of  the  officer.  No  man  in  the  state  is  com- 
[^'194]  petent  to  receive  the  amount  *of  such  bond ;  no 
payment  to  any  man  in  the  state  would  exonerate 
the  officer  or  his  sureties;  and  it  is  therefore  unnecessary 
to  aver,  in  the  declaration,  the  non-payment  of  the  pen- 
alty. 

For  these  reasons  we  think  the  demurrer  ouffht  to  have 
been  overruled. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Rariden,  for  the  appellant. 
Dunn,  for  the  appellees. 


(226) 


NOVEMBER  TERM,  1828.  194-195 


Whalen  v.  Layman. 


"Whalen  r.  Layman. 

Marriage  Contract — BRiiAcii— Seduction.— In  an  action  for  a  breach  of 
promise  of  marriage,  the  plaintiff  may  introduce  evidence  of  seduction  (a). 

ERROR  to  the  Bartholomew  Circuit  Court. — Sarah 
Layman  brought  an  action  of  assumpsit  against  Thomas 
Whalen  for  a  breach  of  promise  of  marriage.  The  de- 
fendant pleaded  the  general  issue.  Verdict  and  judg- 
ment for  the. plaintiff. 

Scott,  J. — In  an  action  for  a  breach  of  promise  of  mar- 
riage, the  plaintiff  offered  proof  of  seduction.  The  de- 
fendant objected  ;  but  the  Court  overruled  the  objection, 
and  permitted  the  evidence  to  go  to  the  jury;  and  there 
was  a  verdict  for  the  plaintiff  below  for  100  dollars.  The 
admission  of  evidence  of  seduction  is  complained  of  by 
the  plaintiff  in  error,  and  this  is  the  only  point  in  tho 
case.  There  is  no  error  here.  The  evidence  was  proper 
for  the  consideration  of  the  jury,  and  the  Court  acted 
correctly  in  admitting  it.  2  Stark.  Ev.  942,  n.  1 ;  Paul  v 
Frazier,  3  Mass.  R.  73;  Boynton  v.  Kellogg,  id.  189.  The 
contrary  was  decided  in  the  case  of  Burks  v.  Shain,  'I 
Bibb,  341 ;  but  that  case  is  not  supported  by  any  othei* 
decision  within  our  knowledge. 

Per  Curiam. — The  judgment  is  affirmed,  with  5  per  cent, 
damages  and  costs. 

Siveetser,  for  the  plaintiff. 

Wick  and  Herod,  for  the  defendant. 


["^1951    *DoE,  on  the  Demise  of  Sheets,  v.  Roe,  on  Appeal. 

Lien  of  Judgment — When  ExTrNGUiSHED. 

THE  lien  of  a  judgment  is  not  extinguished  by  the 
execution  of  a  replevin-bond,  but  continues  until  the 
judgment  is  actually  satisfied  (1). 

(a)  2  Ind.  402 ;  overruled,  48  Id.  5fi2. 

(227) 


105-196     SUPREME  COURT  OF  IXDIAXA, 


Crane  and  Wife  v.  Douglass. 


(1)  The  statute  now  expressly  enacts, — that  "the  entering  of  security  hy 
recognizance  of  record  for  the  payment  of  any  judgment,  and  the  rei)lL'vy- 
ing  of  an  execution  in  the  hands  of  an  officer,  and  the  giving  of  a  hond  for 
the  delivery  of  property  on  execution,  shall  neither  nor  all  operate  as  a  sat- 
isfaction of  the  original  judgment,  upon  which  such  proceedings  shall  or 
may  be  had,  so  as  to  extinguish  the  lien  created  by  such  original  judgment, 
«pon  the  estate  of  any  judgment-debtor."     R.  C.  1831,  p.  24.S. 


Crane  and  Wife  v.  Douglass. 

ISLANDER — Justification — Malice. — Case  by  A.  against  B.  for  slanderous 
words.  Plea,  that  the  defendant  liad  heard  from  C.  the  charges  men- 
tioned in  the  declaration,  and  that,  at  the  time  the  defendant  spoke  the 
words,  he  .stated  that  C.  had  told  him  so.  Replication,  that  the  defend- 
ant had  spoken  and  published  the  words  falsely  and  maliciously  with  a 
knowledge  that  they  were  false,  and  with  the  intent  alleged  in  the  decla- 
ration.    Held,  on  special  demurrer,  that  the  replication  was  good  (a). 

APPEAL  from  the  Jackson  Circuit  Court. 
Scott,  J. — To  an  action  on  the  case  for  slanderous 
words,  the  defendant,  after  the  general  issue,  pleaded 
specially,  that  he  had  heard  from  one  John  Mapes  the  said 
several  charges  in  the  declaration  mentioned,  and  that, 
at  the  several  times  of  speaking  the  words,  he  had  stated, 
in  the  presence  of  the  same  j^ersons  in  whose  hearing  the 
words  were  spoken,  that  John  Mapes  told  him  so.  To 
this  plea  the  plaintiffs  replied,  that  the  defendant  spoke 
and  published  the  words  falsely  and  maliciously,  of  his 
own  wrongful  and  malicious  disposition,  and  with  a 
knowledge  of  their  being  false,  and  with  the  purpose  and 
iTitent  as  in  said  declaration  is  suggested;  and  not  iu  the 
maimer  and  with  the  intent  and  purpose  as,  in  said  plea, 
by  him  is  pleaded  and  suggested.  There  was  a  special 
demurrer  to  this  replication,  and  judgment  for  the  de- 
fendant. We  think  this  was  wrong.  When  a  plea 
[*196]  consists  merely  of  matter  of  excuse  or  *justifica- 
tion,  the  general  replication,  de  injuria  sua  jyvopria^ 
is  the  proper  answer,  and  puts  the  whole  plea  in  issue. 

(a)  5  Blkf.  574 ;  9  Ind.  500.  : 

(228) 


NOVEMBER  TERM,  1828.  196 


Crane  and  Wife  v.  Douglass. 


Stark,  on  SI.  348,  1  Saund.  244,  a.  u.  7  (1)  The  fact  that 
the  defendant  heard  the  slander  from  another  person,  and 
that  he  o-ave  tlie  name  of  the  author  at  the  time  of  repeat- 
ino-  it,  does  not,  pei^  se,  amount  to  an  absolute  justifica- 
tion; it  only  raises  a  presumption,  prima  fade,  in  his 
favor,  that  he  did  not  circulate  the  slander  maliciously; 
which  presumption  may,  notwithstanding,  be  rebutted  by 
testimony  going  to  prove  positive  malice.  Stark,  on  SI. 
213,  397.  The  replication  answers  the  plea  according  to 
its  legal  effect  and  operation,  and  takes  away  all  the  mat- 
ter of  exculpation  contained  in  it;  and  the  defendant,  by 
the  demurrer,  admits  that  he  uttered  the  slander  ma- 
liciously (2). 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  with  directions  to  permit  the  defendant 
to  withdraw  his  demurrer,  &c. 

Nelson  and  Farnham,  for  the  appellants. 

Howk,  for  the  appellee. 

(1)  The  replication,  de  injuria,  is  spoken  of  as  follows  in  a  late  valuable 
treatise  on  pleading:  "  This  species  of  traverse  occurs  in  the  replication,  in 
actions  of  trespass  and  trespass  on  the  case  ;  but  is  not  used  in  any  other  stage 
of  the  pleading.  In  these  actions,  it  is,  in  general,  the  proper  form,  wher- 
ever the  replication  traverses  the  plea  in  bar.  But  to  this,  there  are  the 
following  large  exceptions  :  "When  the  matter  to  be  traversed  consists  either 
of  matter  of  title  or  interest, — or  authority  of  law, — or  authority  in  fact  derived 
from  the  opposite  party, — or  matter  of  record, — in  any  of  these  cases,  the 
replication  de  injuria  is  generally  improper ;  and  the  traverse  should  be  in 
the  common  form;  that  is,  in  the  words  of  the  allegation  traversed." 
Steph.  on  Plead.  187,  188.  Crogate's  case,  8  Co.  132,  is  cited  for  the  above 
doctrine,  and  is  the  leading  case  on  the  subject.  The  following  is  a  deci- 
sion of  the  Court  of  King's  Bench,  in  1832  :  "An  avowry  in  replevin  stated 
tliat  the  plaintiff  was  an  inhabitant  of  a  parish,  and  ratable  to  the  relief 
of  the  poor,  in  respect  of  his  occupation  of  a  tenement  situate  in  the  place 
in  which,  \-c.;  that  a  rate  for  the  relief  of  the  poor  of  the  said  parish  was 
duly  made  and  published,  in  which  the  plaintiff  was  in  respect  of  such  oc- 
cupation duly  rated  in  the  sum  of  7/.;  that  he  had  notice  of  the  rate,  and 
was  required^  to  pay,  but  refu.sed  ;  that  he  was  duly  summoned  to  a  petty 
sessions  to  show  cause  why  he  refused;  that  he  appeared  and  showed  no 
cause,  whereupon  a  warrant  was  duly  made  under  the  hands  of  two  jus- 
tices of  the  peace,  directed  to  defendant,  requiring  him  to  make  distress  of 
the  phiintiff's  goods  and  chattels;  that  the  warrant  was  delivered  to  de- 
fendant, under  which  he  as  collector  justified  taking  the  goods  as  a  distress, 
and  prayed  judgment  and  a  return.  Plea  in  bar,  de  injuria,  &c.  Special 
demurrer,  assignintr  for  cause,  that  the  plea  offered  to  put  in  issue  several 
distinct  matters,  and  was  pleaded  as  if  the  avciwry  consisted  merely  in  ex- 
cuse of  tlie  taking  and  detaining,  and  not  in  justification  and  claim  of  right. 

(229) 


196-197     SUPREME  COURT  OF  INDIANA. 


Crane  and  Wife  v.  Douglass. 


Held,  by  Parke  and  Patteson,  Js.,  Lord  Tenterden  C.  J.  dissentiente, 
that  the  the  plea  in  bar  was  good."  Selby  v.  Bardons,  3  Barn.  &  Adol.  2. 
[*197]  *It  appears  by  the  last-cited  case,  1st,  that  as  the  interest  claimed 
by  the  avowry  did  not  exist  previously  to  the  seizure  complained  of, 
that  interest  did  not  excuse  the  plea  of  de  injuria;  2d,  that  the  facts  stated 
in  the  avowry  fall  within  the  principle  of  a  justification  under  any  Court  not 
of  record,  where  de  injuria  generally  is  good  ;  3d,  that  as  all  the  facts  in  the 
avowry  show  but  one  cause  of  defence,  the  multiplicity  of  the  matters  put  in  is- 
Bue  was  no  objection  to  the  plea  of  de  injuria.  The  judgment  in  this  case 
was,  in  1833,  affirmed  in  the  Exchequer  Chamber.  Bardons  v.  Selby,  9 
Bing.  756. 

(2)  Northampton's  case,  4th  Resolution,  12  Co.  134,  is  the  leading  case 
on  this  subject.  That  case,  so  far  as  it  imports  a  general  position, — that 
the  repetition  of  slander  is  always  justifiable,  if  the  party  state  at  the  time 
of  repeating  the  words  the  name  of  the  author, — may  be  considered  as  over- 
ruled in  the  English  Courts.  The  following  is  a  decision  of  the  Court  of 
King's  Bench  in  1829  :  "  In  an  action  for  slander,  for  words  spoken  of  the 
plaintiff  in  his  trade,  importing  a  direct  assertion  made  by  the  defendant, 
that  the  plaintiff  was  insolvent,  the  defendant  pleaded  that  one  T.  W.  spoke 
and  published  to  the  defendant  the  same  words,  and  that  the  defendant,  at 
the  time  of  speaking  and  publishing  them,  declared  that  he  had  heard  and 
been  told  the  same  from  and  by  the  said  T.  W.  Held,  upon  demurrer,  that 
this  plea  was  bad, — 1st,  because  it  did  not  confess  and  avoid  the  charge 
mentioned  in  the  declaration,  the  words  in  the  declaration  importing  an 
unqualified  assertion  made  by  the  defendant  in  the  words  stated  in  the 
declaration,  and  the  words  used  in  the  plea,  importing  that  the  defendant 
mentioned  the  fact  on  the  authority  of  T.  W.;  —  2d,  because  it  did  not 
give  the  plaintiff  any  cause  of  action  against  T.  W.,  inasmuch  as  it  did  not 
allege  that  T.  W.  spoke  the  words  falsely  and  maliciously; — 3d,  because  it 
is  not  an  answer  to  an  action  for  oral  slander  for  a  defendant  to  show  that 
he  heard  it  from  another,  and  named  the  person  at  the  time,  without 
showing  that  the  defendant  believed  it  to  be  true,  and  that  he  spoke  the 
words  on  a  justifiable  occasion."  M'Pherson  v.  Danieh,  10  Barn.  &  Cress.  263. 

The  Court  of  Common  Pleas  in  1830,  in  speaking  of  the  4th  Resolution 
jn  North ampstons's  case,  says,  "But  the  resolution  above  referred  to,  which 
has  at  all  times  been  looked  at  with  disapprobation,  has,  in  the  recent  case  of 
M'Pherson  v.  Danieh,  10  B.  &  C.  263,  been  in  effect  overruled  by  the  Court 
of  K.  B.;  and  with  the  judgment  of  that  d  urt,  upon  that  occasion,  we  en- 
tirely concur.     Ward  v.  Weeks,  7  Bing.  211. 


END  OF  NOVEMBER  TERM,  1828. 


(230) 


[*198]  *  CASES 

ARGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE  OF  INDIANA, 


AT  INDIANAPOLIS,   MAY  TERM,   1829,   IN   THE  THIRTEENTH  YEAB    OF    THE 

STATE. 


Elliott  v.  Armstrong. 

Trust — Express — Implication. — A  trust  estate  in  real  property,  as  separate 
from  the  legal  ownership,  may  either  be  created  by  an  express  declaration 
of  the  trust ;  or  it  may  be  raised  upon  certain  facts  by  implication  of 
law  (a). 

Same — Evidence. — The  statute  of  frauds  requires  all  declarations  of  trust 
in  land  to  he  proved  by  written  testimony;  but  those  trusts  which  arise 
by  the  mere  operation  of  law,  are  excepted  out  of  the  statute  and  may 
be  provided  by  parol  evidence  (6). 

Same — Implication. — If  A.  purchases  land  with  his  ovmmoney,  and  the  deed 
be  made  to  B.,  a  trust  results  in  favor  of  A.,  provided  there  be  no  circum- 
stances in  the  case  to  rebut  this  presumption  of  the  law. 

Same — Remedy — Pleading — Parties. — To  a  bill  in  chancery  by  the  gran- 
tee of  a  cestui  que  trust  against  the  trustee  to  obtain  the  legal  title,  the 
grantor  need  not  be  a  party  either  as  complainant  or  defendant. 

Contract — Consideration — Failure. — A.  contracted  to  sell  to  B.  certain 
real  estate,  in  consideration  that  B.  should  give  up  a  note  held  by  him 
against  A.,  and  pay  to  A.  a  small  sum  of  money.  The  giving  up  of  the 
note  to  A.  was  the  principal  part  of  the  consideration.     B.  subsequently 

(a)  3  Blkf.  39.     (6)  4  Id.  539 ;  3ind.558  ;  7  Id.  277  ;  9  Id.  347. 

(231) 


198-199   SUPREME  COURT  OF  INDIANA. 

Elliott  V.  Armstrong. 

pledged  the  note  to  a  third  person,  and  absented  himself  from  the  coun- 
try for  7  years,  without  paying  any  part  of  the  purchase-money.  Held, 
that  A.  was  discharged  from  the  contract. 

Trust — Conveyance  by  Cestui  Que  Trust. — The  estate  of  a  cestui  que 
trust  may  be  sold  and  conveyed  by  him,  as  well  as  any  other  estate. 

Deed — Warranty — Consideration. — A  release  by  the  grantee,  of  the 
covenant  of  a  warranty  contained  in  a  conveyance  of  real  estate,  does 
not  affect  the  validity  of  the  conveyance. 

Trustee — Sale  of  Trust. — The  estate  of  a  bare  trustee  is  not  subject  to  be 
sold  on  an  execution  against  him. 

Judicial  Sale — Void  Execution. — The  sale  of  real  estate  on  void  exe- 
cution is  a  nullity,  and  vests  no  title  in  the  purchaser. 

[*199]  -Trust — Evidence — Statements  in  Deed. — A  complaint  in  chan- 
cery may  prove,  by  parol  evidence,  in  order  to  show  a  resulting 
trust,  that  the  nurchase-money  for  real  estate  conveyed  to  another  was 
paid  by  himself,  though  the  deed  state  that  the  money  was  paid  by  the 
grantee,  and  the  answer  contain  a  denial  of  the  trust. 

Pledge — Ownership — Kedemption. — The  absolute  right  of  property  and 
the  right  of  possession  in  a  note  which  had  been  pledged  for  the  pay- 
ment of  a  debt,  become,  on  payment  of  the  debt,  vested  in  the  pledgor ; 
and  if  the  note  be  afterwards  converted  by  the  pledgee  to  his  own  use,  he 
is  liable  to  the  pledgor  in  an  action  of  trover. 

Sale — Market  Overt. — In  the  sale  of  personal  property,  not  in  market 
overt,  the  general  rule  is,  that,  though  the  purchase  be  bona  fide  for  value, 
the  purchaser  receives  no  better  title  than  that  of  which  the  seller  was 
possessed.  But  bills  of  exchange  and  promissory  notes  are  exceptions  to 
this  rule ;  when  they  are  originally  payable  to  bearer ;  or  when,  in  the 
first  instance,  they  are  payable  to  order  and  afterwards  by  a  blank  en- 
dorsement become  payable  to  bearer ;  they  pass  by  delivery ;  and  the  pur- 
chaser who  uses  due  caution,  pays  a  valuable  consideration,  and  takes 
them  in  the  common  course  of  business,  has  a  good  title  against  all  the 
world,  whether  the  seller  had  any  title  or  not.  A  note  payable  to  order, 
however,  can  not  pass  without  an  endorsement  either  by  the  payee  or  by 
some  person  in  the  payee's  name  and  by  his  authority  (c). 

Trust — By  Implication — Presumption. — The  trust,  in  real  estate  conveyed 
to  A.  resulting  in  favor  of  B.  in  consequence  of  his  payment  of  the  pur- 
chase-money, is  a  kind  of  arbitrary  implication  raised,  to  stand  until 
some  reasonable  proof  be  brought  to  the  contrary;  and  if  the  money  was 
paid  for  the  express  purpose  of  vesting  in  A.  both  the  beneficial  and  legal 
interest,  no  trust  can  result  in  favor  of  B, 

Same — Eight  of  Creditors. — A.  made  a  verbal  contract  for  the  purchase 
of  a  town  lot,  and,  during  A.'s  absence  from  the  country,  B.  partly  with 
his  own  money  but  principally  with  A. '.s  property,  completed  the  contract 
for  A.,  and  took  the  deed  in  the  name  and  for  the  benefit  of  A.     Held, 

(c)  47Ind.  226;  45  /(/.  122 

(232) 


MAY  TERM,  1829.  199-200 

Elliott  V.  Armstrong. 

that  A.'s  subsequent  ratification  of  B.'s  acts  made  him  liable  to  B.  for 
the  amount  paid  for  him  by  B. ;  and  also  rendered  the  lot  as  A.'s  prop- 
erty liable,  from  the  date  of  the  deed,  to  a  judgment  against  him  in 
favor  of  B. 

APPEAL  from  the  Dearborn  Circuit  Court. 

Blackford,  J. — This  is  a  suit  in  chancery  from  the 
Dearborn  Circuit  Court.  Armstrong  was  the  complain- 
ant below,  and  Elliott  the  defendant.  It  is  the  case  of  a 
cestui  que  trust,  demanding  a  conveyance  of  real  estate 
from  his  trustee. 

The  bill  states,  that  Vance  and  Dill,  being  indebted  to 
Elliott  in  the  sum  of  67  dollars  and  56  cents  for  cooper's 
Avork,  gave  him  their  due-bill,  dated  the  15th  of  March, 
1805;  and  thereby  acknowledged  themselves  indebted  in 
that  amount  to  Elliott  or  order;  that  shortly  afterwards, 
Vance,  for  the  purpose  of  paying  the  said  note,  proposed 
to  let  Elliott  have  a  town  lot,  numbered  171,  in  Lawrence- 
burgh,  for  75  dollars;  Elliott  paying  the  difference  be- 
tween the  amount  of  the  note  and  the  price  of  the  lot; 
to  which  proposition  Elliott  seemed  willing;  and  he  was 
to  receive  a  bond  for  a  deed,  as  soon  as  he  gave  up  the 
note  and  paid  the  said  balance;  that  in  1807 
[*200]  Elliott  left  *the  Western  country,  having  first 
transferred  the  note  of  Vance  and  Dill,  by  deliv- 
ery, to  Kuffin  of  Cincinnati,  as  collateral  security  for  a 
debt  which  Ruffin,  as  Elliott's  surety,  was  bound  for  to 
Vattier,  and  had  afterwards  to  pay:  and  that  Ruffin,  hav- 
ing been  told  by  Elliott  that  Vance  and  Dill  would  pay 
the  note  on  sight,  called  upon  Vance  to  his  astonishment 
f(U'  payment;  that  when  Elliott  transferred  the  note  he 
made  no  arrangement,  nor  has  he  made  any  since,  for 
paying  the  consideration-money  for  the  lot;  nor  did  he 
signify  then,  nor  has  he  signified  since,  any  intention  or 
wish  to  have  the  lot  in  the  manner  proposed  by  Vance, 
or  otherwise. 

The  bill  further  states  that,  in  1810.  Horner,  having 
claims  asrainst  Elliott,  sued  out  an  attachment  against  him, 

(283) 


200-201   SUPREME  COURT  OF  INDIANA. 


Elliott  ('.  Armstronc 


which  was  levied  on  the  said  lot,  numbered  171,  under 
the  impression  that  it  was  Elliott's;  and  that,  in  1811, 
judgment  was  obtained  on  the  attachment  for  upwards 
of  100  dollars:  which  judgment  is  assigned  to  the  com- 
plainant; that  on  Horner's  discovering  that  Vance  had 
still  the  legal  and  equitable  title  to  the  lot,  Vance  agreed 
to  let  Horner  have  it  at  the  same  price  that  Elliott  was 
to  pay ;  that  is,  upon  his  getting  up  for  Vance  the  said 
note,  which  was  then  Ruffin's,  and  paying  Vance  the  bal- 
ance of  the  consideration-money ;  and  that  with  these 
terms  Horner  complied ;  that  some  doubts  existed  with 
Vance  as  to  whom  the  deed  ought  to  be  made ;  whether 
directly  to  Horner,  he  having  paid  the  whole  considera- 
tion-money;  or  to  Elliott,  so  that  Horner  might  sell  the 
lot  by  virtue  of  his  judgment  on  the  attachment;  that 
Vance,  however,  being  advised  so  to  do,  made  the  deed 
to  Elliott,  but  delivered  it  to  Horner  for  his  sole  benefit ; 
Horner  having  paid  the  whole  of  the  purchase-money; 
that  Horner  then  took  out  execution  on  his  judgment 
against  Elliott,  levied  it  upon  the  said  lot,  bought  the 
same  for  75  dollars  at  the  sheriff's  sale,  and  received  the 
sheriff's  deed;  the  said  amount  passing  as  a  credit  to 
Elliott  upon  the  judgment;  that  in  1812,  Horner,  by  vir- 
tue of  the  premises,  took  possession  of  the  said  lot,  and 
continued  to  occupy  it  and  pay  the  taxes  until  1816 ;  when 
the  complainant,  believing  the  lot  to  be  Horner's  in  fee 
simple,  purchased  the  same  for  300  dollars,  received  a 
deed  from  him,  took  peaceable  possession,  and  proceeded 
to  make  valuable  improvements. 

The  bill  further  states  that  Elliott  returned  to 
[*201]  the  country  in  *1819  ;  and,  being  informed  of  the 
deed,  and  of  the  sale  of  the  lot  on  execution,  he 
said  that  the  deed  to  him  had  been  made  without  author- 
ity, and  refused  to  take  it  out  of  the  recorder's  office;  but 
hearing  soon  after,  that  the  sheriff's  sale  was  probably  er- 
roneous, if  not  void,  he  took  the  deed,  and  in  an  action 
of  ejectment  for  the  lot,  commenced   in   1819,  recovered 

(234) 


MAY  TERM,  1829.  201-202 

Elliott  V.  Armstrong. 

judgment  against  the  complainant  in  1821,  on  the  ground 
that  the  sheriif' s  sale  to  Horner  was  void;  which  judg- 
ment was  affirmed  by  this  Court  in  1822 ;  that  until  after 
tlie  said  judgment  in  ejectment,  the  complainant  was  ig- 
norant of  all  the  facts  in  relation  to  this  his  equitable  de- 
fence, growing  out  of  the  trust  and  payment  of  the  con- 
sideration-money; and  that  Elliott  threatens  that  he  will 
take  possession  of  the  lot,  and  the  improvements. 

The  prayer  of  the  bill  is,  that  the  defendant  be  com- 
pelled to  convey  the  said  lot  to  the  complainant,  and  be 
enjoined  from  proceeding  at  law,  &c. 

To  this  bill  the  defendant  answers  as  follows : 

That  Vance  and  Dill,  being  indebted  to  the  defendant 
for  cooper's  work,  gave  him  their  note  about  the  time 
expressed  in  the  bill,  for  about  70  dollars;  that  soon  after, 
he  contracted  with  Vance  to  take  the  lot,  numbered  171, 
in  satisfaction  of  the  note,  but  took  no  bond  or  deed  from 
Vance  for  the  lot,  as  the  title  was  yet  in  the  government; 
that  he  does  not  recollect  that  the  price  of  the  lot  ex- 
ceeded the  amount  of  the  note,  but  that  if  it  did,  he  paid 
the  difference  in  cooper's  work;  that  immediately  after 
the  purchase,  the  defendant  took  possession  of  the  said 
lot,  occupied  one  of  the  two  log  buildings  on  it  as  a  coop- 
er's shop,  and  carried  on  the  business  of  a  cooper  on  the 
lot  from  the  time  of  the  purchase  in  1805,  until  February 
or  March,  1806,  when  he  went  to  the  Eastern  states; 
leaving  a  journeyman  of  his  at  work  on  the  lot,  and  Per- 
cival  his  general  agent. 

The  answer  also  states,  that  when  the  defendant,  in 
1806,  was  about  leaving  the  country,  thinking  some  ac- 
cident might  happen  to  him  before  his  return,  and  Ruffin 
being  his  surety  to  Vattier  for  about  66  dollars,  not  due  for 
several  months,  he  left  the  said  note  with  Ruffin  as  a  col- 
lateral security,  in  case  he  should  have  to  pay  Vattier ;  the 
defendant  supposing  the  lot  might  be  had  of  Vance  upon 
l)roduction  of  the  note;  but  he  denies  that  he  ever 
[*202]    sold  the  note  to  Ruffin,  or  told  him  that  *Vance 

(235) 


202  SUPREME  COURT  OF  INDIANA. 

Elliott  V.  Armstrong. 

would  pay  it  upon  sight;  that  after  Ruttin  had  paid 
Vattier,  and  long  before  ho  had  given  up  tlie  note 
of  Vance  and  Dill,  Percival,  the  defendant's  agent,  placed 
in  Ruffin's  hands  a  note  beiong-ino:  to  the  defendant, 
against  Brown  for  about  80  doHars,  to  be  collected;  with 
instructions  to  Ruffin  to  pay  himself  out  of  the  proceeds; 
and  that  judgment  was  obtained  on  this  note  against 
Brown,  and  the  mone}^,  to  wit,  87  dollars  and  50  cents, 
paid  to  Ruilin,  leaving  a  balance  of  about  20  dollars  due 
to  the  defendant. 

The  defendant  admits,  that  there  was  something  due 
from  him  to  Horner  at  the  time  of  the  attacbment,  and 
that  judgment  was  thereon  obtained  as  stated  in  the  bill. 
He  states  that  he  has  been  informed  and  believes  that 
Horner,  so  far  from  contracting  with  Vance  for  the  said 
lot,  procured  a  deed  to  be  made  for  it  to  the  defendant, 
not  through  mistake,  but  for  the  express  purpose  of  sell- 
ing it  upon  his  said  execution,  as  a  mere  equity  could  not 
be  sold.  He  denies  that  he  was  ever  the  trustee  of  Hor- 
ner, so  far  as  he  can  understand  his  rights.  He  admits 
that  the  said  lot  was  sold  on  execution,  upon  the  said 
judgment,  at  the  time  stated  in  the  bill;  and  that  Hor- 
ner, the  judgment-creditor,  became  the  purchaser  and 
received  the  sheriff's  deed. 

The  defendant  admits  that,  on  his  return  in  1819,  he 
accepted  the  deed  which  had  been  made  to  him  by  Vance, 
and  took  it  from  the  recorder.  He  admits  having  said, 
that  Horner  had  no  right  to  have  a  deed  executed,  until 
the  defendant  chose  to  take  it  from  Vance.  He  also  ad- 
mits that,  immediately  on  his  return,  he  took  the  neces- 
sary steps  to  regain  possession  of  the  lot,  brought  an 
ejectment  in  the  same  3'ear,  and  afterwards  obtained  a 
judgment  against  the  complainant  as  stated  in  his  bill. 
He  denies  all  fraud,  &c. 

In  addition  to  the  answer,  the  defendant  pleaded  in 
bar,  a  release  made  by  the  complainant  to  Horner,  of  the 

(28.^) 


MAY  TERM,  1829.  202-203 

Elliott  ('.  Armstrong. 

covena)it  of  warrant}',  contained  in  Horner's  conveyance 
of  the  premises  to  the  complainant. 

There  is  a  general  replication  to  the  answer.  To  the 
plea  no  reply  was  required. 

The  material  facts,  presented  by  the  exhibits  and  proofs 
contained  in  the  record  of  this  cause,  are  believed  to  be 

the  following: 
[*203]  *Vance  and  Dill,  inhabitants  of  Lawrenceburgh, 
being  indebted  to  Elliott,  the  defendant,  who  re- 
sided in  the  same  place,  for  cooper's  work,  gave  him  their 
note,  dated  the  15th  of  March,  1805,  for  67  dollars  and  56 
cents,  that  being  the  amount  they  owed  him.  This  note 
reads  as  follows:  "  Due  Samuel  Elliott  or  order,  67  dollars 
and  56  cents,  for  value  received.     March  15th,  1805." 

At  some  time  during  the  same  year,  1805,  a  conversa- 
tion took  place  in  Lawrenceburgh  between  Vance  and 
Elliott,  respecting  the  sale  by  the  former  to  the  latter  of  a 
lot  in  that  town,  numbered  171;  the  same  which  is  now 
the  subject  of  dispute.  In  tliat  conversation,  Vance  pro- 
posed to  sell  the  lot  to  Elliott,  and  Elliott  agreed  to  take 
it  of  him,  at  the  price  of  75  dollars.  This  was  only  a 
verbal  contract,  and  was  not  to  be  considered  complete, 
until  Elliott  should  give  up  the  note  of  Vance  and  Dill 
of  67  dollars  and  56  cents,  and  pay  to  Vance  the  differ- 
ence between  the  amount  of  the  note  and  the  price  of  the 
lot.  Immediately  after  this  contract,  and  in  consequence 
of  it,  Elliott  took  possession  of  the  lot,  and  occupied  a 
cabin  on  it  as  a  cooper's  shop,  until  some  time  in  the  year 
1806,  when  he  left  Lawrenceburgh  and  went  to  New  Hamp- 
shire; leaving  some  property  on  the  lot,  and  a  journey- 
man at  work  in  the  shop. 

Previously  to  his  going  away,  Elliott  had  become  in- 
debted to  Vattier,  oi'  Cincinnati,  in  about  66  dollars,  and 
had  given  to  him  a  note  for  the  amount  payable  at  a 
future  period,  with  RulBn,  of  Cincinnati,  as  his  surety. 
When  Ruffin  heard  that  Elliott  was  about  to  leave  the 
country,  he  requested  from  him  security  against  his  Ha- 

(237) 


203-204    SUPKEME  COURT  OF  INDIANA. 

Elliott  V.  Armstrong. 

liility  to  Vattier.  Elliott,  accoiTlingl}',  placed  in  Ruffin's 
hands  the  note  of  Vance  and  Dill,  as  a  collateral  security 
and  indemnity  against  the  claims  of  Vattier:  but  he  did 
not  endorse  it.  This  note  Ruffin  was  to  collect  from 
V^ance  and  Dill,  in  case  he  should  be  obliged  to  pay  the 
debt  due  to  Vattier,  which  would  be  due  in  a  few  months. 

Elliott,  when  he  went  away,  left  some  business  unset- 
tled, lie  owed  some  money,  and  there  were  some  debts 
due  to  him.  He  appointed  Percival,  of  Lawrenceburgh, 
liis  general  agent;  and  left  with  him,  among  other  claims, 
a  note  against  Brown,  of  Hamilton  county,  Ohio,  for  87 
dollars  and  50  cents,  payable  in  hogshead  staves  to  be  de- 
livered at  Lawrenceburgh,  one-half  in  June,  and  the 
other  half  in  September,  1806.  In  the  opinion 
[-''204]  *of  his  agent,  Elliott  left  sufficient  property  to  pay 
his  debts,  if  his  business  had  been  properly  man- 
aged. The  principal  demand  against  him,  beside  that  of 
Vattier,  was  one  in  favor  of  Horner,  of  Lawrenceburgh, 
for  about  100  dollars. 

Some  time  after  Elliott's  departure,  Ruffin,  as  his  surety, 
having  been  obliged  to  pay  Vattier,  called  upon  Vance 
for  the  payment  of  the  note  of  Vance  and  Dill,  which 
Elliott  had  left  with  Ruffin  as  a  collateral  security  against 
the  claim  of  Vattier.  Vance  was  much  surprised  at  this 
circumstance;  and  informed  Ruffin,  that  he  had  made  a 
verbal  agreement  with  Elliott  for  the  sale  of  a  lot  in  Law- 
renceburgh, and  that  he  expected  to  pay  the  note  in  that 
way.  Ruffin,  hearing  this,  expressed  his  dissatisfaction 
with  Elliott's  conduct,  and  replied  that  he  would  let  the 
matter  rest  for  the  present.  After  this,  to  wit,  in  1807, 
Ruffin  inquired  of  Percival  as  to  wdiat  had  become  of  El- 
liott, told  liim  that  he  had  paid  the  A'^attier  debt,  and  ex- 
pressed some  uneasiness  about  it.  He  also  told  Percival, 
that  he  had  presented  to  Vance  the  note  which  Elliott 
liad  placed  in  his  hands,  but  that  Vance  said  he  would 
plead  the  contract  for  the  lot  in  bar  of  any  suit  upon  the 
note.     Ruffin,  at  the  same  time,  inquired  of  Percival,  if 

(238) 


MAY  TERM,  1829.  204:-205 

Elliott  I'.  Armstrong. 

Elliott  had  not  left  any  property  which  he  could  attach 
for  the  amount  he  had  paid  to  Vattier.  Percival,  in  re- 
ply, informed  him  of  his  having  the  note  against  Brown 
in  t\ivor  of  Elliott;  wdiich  note  he  gave  to  Rnfhn,  and 
told  him  he  could  make  his  money  out  of  that.  Percival 
took  a  receipt  from  Ruihn  for  this  note  against  Brown, 
and  shortly  afte'-wards  wrote  to  Elliott,  informing  him  of 
the  circumstance. 

In  the  December  fcdlowing,  judgment  was  obtained  at 
Cincinnati  for  90  dollars  and  12  cents,  besides  costs,  in  the 
name  of  Elliott  against  Brown,  on  the  note  thus  delivered 
to  Ruffin  by  Percival,  the  agent  of  Elliott.  St.  Clair  was 
the  attorney  on  record.  This  judgment,  with  the  interest 
and  costs,  was  collected  on  various  executions  issued  dur- 
ing the  years  1808,  1809,  1810,  and  1811.  The  deputy 
sheriff  states  that,  in  1810,  the  sheriff  left  with  him  sun- 
dry receipts  on  these  executions;  one  by  Thomas,  wdiich 
he  thinks  was  signed  by  him  as  attorney,  for  50  dollars 
and  50  cents;  and  two  others  by  liuffin,  one  for  5  dollars, 
the  other  for  20  dollars,  signed  by  him,  the  witness  be- 
lieves, as  agent  for  the  plaintiff.     The  sherift'  instructed 

his  deputy,  in  1810,  to  pay  any  money  he  should 
[*205]    collect  on  the  *execution  in  this  case,  then  in  his 

hands,  to  Ruffin  ;  and  it  appears  that  the  deputy 
applied  to  Ruflin  for  instructions  relative  to  one  of  the 
executions,  and  was  advised  by  him  what  to  do.  No  in- 
structions were  ever  given  to  the  deputy,  in  this  case, 
except  by  the  sheriff  and  Rufiin.  The  two  following  re- 
ceipts were  given  by  Ruffin  for  money  received  by  him 
on  this  debt  against  Brown:  "Samuel  Elliott  y.  Samuel 
Browm.  Execution  to  December  term,  1810.  Cincinnati, 
October  12th,  1810,  lieceived  of  Aaron  Goforth,  late 
sheriff  of  Hamilton  county,  the  sum  of  82  dollars  in  part 
of  the  above  execution ;  7  dollars  of  which  were  received 
of  defendant,  as  per  receipt  given  defendant.  Signed, 
Wm.  Ruffin."  "Received,  Cincinnati,  10th  December, 
1812,  of  Mr.  Samuel  Brown,  the  sum  of  9  dollars,  on  ac- 

(239) 


205-206    SUPREME  COURT  OF  INDIAXA. 

Elliott  V.  Armstrong. 

count  of  the  claim  of  Samuel  Elliott  against  said  Brown. 
Signed,  Wm.  RutRn." 

In  1810,  Elliott  not  having  retnrned,  Horner  deter- 
mined to  collect  by  law,  if  possible,  the  money  due  to  him 
from  Elliott.  Supposing  the  lot,  numbered  171,  in  Law- 
renceburgh,  for  which  Elliott  had  formerly  contracted 
with  Vance,  did  really  belong  to  Elliott,  he  sued  out  an 
attachment  against  him  ;  and  the  same  was  accordingly 
"levied  upon  that  lot  as  Elliott's  property.  Ln  June,  1811, 
judgment  was  obtained  against  Elliott  on  this  attach- 
ment, in  favor  of  Horner,  for  about  100  dollars.  The  lot 
however,  which  had  been  attached  as  Elliott's,  was  not 
sold;  Horner  having  discovered,  on  inquiry  of  Vance, 
that  Elliott  had  no  title  to  it  in  law  or  equity;  that  his 
contract  with  Vance  for  the  lot  was  a  mere  verbal  one; 
that  Elliott  had  not  complied  with  the  terms  on  his  part; 
and  that  Vance  did  not  consider  him  as  having  any  right 
to  the  property  whatever.  Horner  then  consulted  wnth 
his  attorneys  at  law,  as  to  the  best  means  of  securing  his 
debt.  The  result  of  this  consultation  was,  that  as  the  lot 
had  increased  in  value  since  EHiott's  agreement  for  it,  and 
would  probablj'  continue  to  do  so,  Horner  should  perfect 
EllioWs  title  to  it,  if  Vance  was  willing,  by  complying 
with  the  terms  which  Elliott  had  agreed  to  perform ;  and 
after  the  title  should  be  vested  in  Elliott,  that  Horner 
should  lev}'  his  execution  on  the  lot  as  Elliott's  property, 
and  become  himself  the  purchaser  at  the  sheriff's  sale. 
Accordingly,  Horner,  with  one  of  his  attorneys,  went  to 
Vance  and  inquired  of  him  whether  he  would  be  willing 
to  make  the  title  for  the  lot  to  Elliott,  if  Horner 
[*206]  ^should  pay  up  and  fulfill  Elliott's  contract.  To 
this  Vance  agreed.  Horner  then  obtained  from 
Ruffin,  at  Cincinnati,  for  50  dollars,  the  note  against  Vance 
and  Dill,  b}'  delicery  merel}',  without  indorsement.  This 
note  Horner  gave  up  to  Vance,  and  paid  him  the  differ- 
ence between  the  amount  of  the  note  mid  the  original 
price  of  the  lot;  and  Vance,  immediatelv,  to  wit,  on  the 

(210) 


MAY  TERM,  1829.  206-207 


Elliott  I'.  Armstrong. 


lOth  of  March,  1812,  executed  the  deed  for  the  lot  to  El- 
liott at  Horner's  request.  As  soon  as  this  was  done,  Hor- 
ner had  the  lot  executed  and  sold  as  Elliott's  property,  pur- 
chased it  himself  at  the  sheriff's  sale  for  75  dollars,  which 
sum  was  credited  on  his  execution  against  Elliott,  and 
then  took  possession  of  the  premises.  The  object  of  this 
transaction  was  to  accommodate  and  benefit  Horner,  and 
to  enable  Vance  to  get  up  his  note. 

In  1816,  Armstrong,  the  complainant,  purchased  the  lot 
from  Horner  for  300  dollars,  entered  into  possession,  and 
made  valuable  improvements;  and,  in  1819,  having  paid 
the  consideration-money,  he  received  from  Horner  a  gen- 
eral warranty  deed  for  the  property. 

Elliott,  who  had  been  absent  from  the  country  about 
thirteen  years,  returned  to  Lawrenceburgh  in  1819,  about 
the  time  of  the  execution  of  the  deed  by  Horner  to  Arm- 
strong, i^ot  long  after  Elliott's  return,  the  recorder  called 
on  him  with  flie  deed  which  had  been  made  to  him  by 
Vance  in  his  absence,  and  demanded  the  recording  fee. 
Elliott  at  first  refused  to  pay  and  take  the  deed,  but  on 
being  sued  by  the  recorder,  he  paid  the  fee  before  the 
trial,  and  received  the  deed.  He  soon  afterwards,  to  wit, 
in  1819,  brought  an  action  of  ejectment  against  Armstrong 
for  the  lot;  and,  in  1821,  recovered  a  judgment  against 
him,  on  the  ground  that  the  execution  against  Elliott, 
under  which  Horner  had  purchased  the  premises,  was  ut- 
terly void,  and  the  sheriff's  sale  a  nullity. 

In  1823,  Armstrong,  for  a  valuable  consideration,  re- 
leased Horner  from  the  covenant  of  warranty,  contained 
in  Horner's  conveyance  to  him  of  the  preinises  in  dispute. 
This  statement,  we  believe,  contains  all  the  material 
testimony  given  in  the  cause.     The  decree  of  the  Circuit 
Court  is  in  favor  of  the  complainant,  requiring  the  de- 
fendant to  convey  to  him  the  legal  title  to  the  lot, 
[*207]    and  enjoining  him  from  ^proceeding  any  further 
at  law,  &c.     The  defendant  appeals  to  this  Court. 
The  complainant  in  this  suit  admits,  that  the  legal  title 
Vol.  II.— 16  (241) 


207  SUPREME  COURT  OF  IXDIAXA. 

Elliott  V.  Armstrong. 

to  the  lot  which  he  clainir?  is  vested  in  the  defendant. 
But  it  is  contended  that  tlie  beneficial  property  is  in  the 
complainant;  and  that  the  defendant  is  bound  to  convey 
to  him  the  legal  estate.  It  is  not  to  be  questioned,  but 
that  the  quality  of  separability  of  the  use  from  the  legal 
title,  as  contended  for  by  the  complainant,  does  exist  in 
real  property.  One  man  may  certainly  have  the  legal 
estate  merely  as  a  trustee,  whilst  another,  called  the  cestui 
que  trust,  has  a  right,  in  equity,  to  demand  the  rents  and 
profits  and  a  conveyance  of  the  legal  title.  This  trust- 
estate  in  real  property,  as  separate  from  the  legal  owner- 
ship, may  either  be  created  by  an  express  declaration  of 
the  trust;  or  it  may  be  raised  upon  certain  facts  by  im- 
plication of  law.  The  statute  of  frauds  requires  all  decla- 
rations of  trust  in  land  to  be  proved  by  written  testimony; 
but  those  trusts  which  arise  by  the  mere  operation  of 
law,  are  excepted  out  of  the  statute,  and  may  be  proved 
by  parol  evidence.  The  complainant  here  does  not  rely 
upon  any  express  declaration  of  trust  in  favor  of  his 
grantor.  He  goes  upon  the  ground,  that  Horner  paid 
the  consideration  for  the  lot;  and  that,  by  virtue  of  such 
payment,  although  the  deed  was  made  to  Elliott,  a  trust 
resulted  to  Horner  by  implication  of  law.  And  there  is 
no  doubt  but  that  the  law  upon  this  subject  is,  that  if  A. 
purchased  land  with  his  own  money,  and  the  deed  be  made 
to  B.,  a  trust  results  in  favor  of  A.;  provided  there  be  no 
circumstances  in  the  case  to  rebut  this  presumption  of 
the  law. 

Some  of  the  points  taken  by  the  defendant,  in  oppo- 
sition to  the  complainant's  demand,  are  very  easily  dis- 
posed of.  He  contends  that  Horner  should  have  been  a 
party,  either  complainant  or  defendant.  The^  suit  is 
by  Armstrong,  the  grantee  of  Horner,  against  Elliott. 
There  existed  no  interest  of  Horner,  therefore  he  needed 
not  to  be  a  party  complainant;  and,  as  there  was  nothing 
demanded  of  him,  there  was  no  occasion  for  his  being  a 
partv  defendant.     Kerr  v.  Watts,  6  Wheat.  550,  559.     In 

(242) 


MAY  TERM,  1829.  207-20? 

Elliott  V.  Armstrong. 

the  case  where  an  assignee  of  a  mortgage  brings  a  bill  of 
foreclosure,  it  is  held  that  the  mortgagee  need  not  be  a 
party.     Whitney  v.  M' Kinney,  7  Johns.  Ch.  Rep.  144,  147. 

We  think  there  is  nothing  in  this  objection. 
[*208]    The  ground  relied  on  *by  the  defendant,  that  his 

parol  contract  with  Yance  gave  him  an  equitable 
estate,  and  that  Horner  was  a  purchaser  with  notice,  has 
no  foundation.  If  that  contract  of  1805  was  originally 
binding  on  the  vendor,  we  have  no  idea  that  it  could  re- 
main so,  after  the  defendant  had  pledged  the  note  at  Cin- 
cinnati, which  was  to  have  been  given  up  as  the  greater 
part  of  the  consideration  for  the  lot;  and  after  he  had 
absented  himself  from  the  country  for  7  years,  without 
having  paid  or  ofiered  to  pay  any  part  of  the  consider- 
ation. 1  Maddock^s  Ch.  328.  It  is  contended  that,  as- 
suming Horner  to  be  the  cest id  que  trust,  he  could  not  sell 
the  property  to  the  complainant  as  set  out  in  the  bill. 
The  law,  however,  is  perfectly  settled,  that  the  estate  of 
a  cestui  que  trust  may  be  conveyed  as  well  as  any  other. 
1  Cruise,  493.  The  defendant  relies  upon  the  release  by 
the  complainant  to  Horner.  That  release,  however,  is 
merely  of  the  covenant  of  warranty  in  Horner's  deed  to 
the  complainant,  and  leaves  the  case  just  where  it  would 
have  been,  had  the  deed  originally  contained  no  covenant 
of  warranty.  The  conveyance  of  the  estate  is  as  valid 
without  that  covenant  as  with  it.  Another  ground  taken 
by  the  defendant  is,  that  when  Horner  purchased  the  lot 
at  the  sheriff's  sale  under  his  judgment  against  Elliott, 
his  trust-estate,  if  he  had  any,  was  merged  in  the  legal 
title  thus  acquired.  The  answer  to  this  objection  is,  first, 
that  if  Elliott  was  a  bare  trustee,  the  estate  was  not  sub- 
ject to  the  execution  against  him;  1  Maddock's  Ch.  363; 
1  Craise,  542 ;  secondly,  that  the  sale  was  at  any  rate  a 
nullity,  and  vested  no  property  in  the  purchaser,  the  ex- 
ecution being  void.  Such  was  the  decision  of  this  Court, 
in  a  case  between  these  same  parties,  at  the  November 
term,  1822.     Horner  therefore  acquired,  under  the  sher- 

(243) 


208-209    SUPREME  COURT  OF  INDIANA. 

Elliott  f.  Armstrong. 

iti's  sale,  no  legal  title  bj'  which  his  equitable  right,  if  he 
had  any,  could  have  been  merged. 

These  comparatively  unimportant  matters,  introduced 
into  the  argument  by  the  defendant,  being  thus  disposed 
of,  we  come  now  to  an  examination  of  the  substantial 
merits  of  the  cause. 

There  are  two  principal  questions  involved  in  this  suit: 
First,  did  Horner  pay  the  consideration,  or  any  part  of  it, 
for  the  lot  in  dispute,  out  of  his  own  money?  And  if  so, 
then,  secondly,  is  the  presumption  of  law,  thus  raised  in 
favor  of  Horner,  destroyed  by  any  rebutting  evidence  on 
the  part  of  the  defendant? 

Previously  to  our  examining  these  questions,  it 
[*209]  may  be  *proper  to  observe,  that  some  of  the  de- 
positions contain  the  general  expressions,  that 
Horner  paid  the  whole  of  the  consideration-money,  and 
that  the  deed  was  made  to  Elliott  for  the  sole  benefit  of 
Horner.  If  these  general  expressions  stood  alone,  they 
would  probably  settle  the  case,  at  once,  in  the  complain- 
ant's favor;  notwithstanding  the  deed  states  upon  its  face 
that  the  consideration  was  paid  by  the  defendant,  and  the 
answer  denies  the  trust.  Boyd  v.  3I'Lean,  1  Johns.  Ch. 
Rep.  582,  586.  These  expressions,  however,  are  explained 
and  modified  in  other  parts  of  the  same  depositions.  We 
iind  that  when  these  witnesses  say  that  Horner  paid  the 
consideration-money,  they  mean  that  he  paid  it  by  get- 
ting the  note  against  Vance  and  Dill  from  Rufhn,  deliver- 
ing it  up  to  Vance,  and  paying  the  difference  between 
the  note  and  the  price  of  the  lot.  And  when  they  say, 
that  the  deed  was  made  for  Horner's  benefit,  their  mean- 
ing is,  that  the  absolute  title  was  vested  in  Elliott  to  ben- 
efit Horner,  by  thus  rendering  the  lot  subject  to  his  judg- 
ment against  Elliott. 

The  first  subject  for  our  inquiry'  is  whether  Horner 
paid  out  of  his  own  money  the  consideration  for  the  lot? 

With  respect  to  this  point,  the  testimony  is  clear  that 
a  promissorv  note,  given  many  years  before  bv  Vance  and 

(244) 


MAY  TERM,  1829.  209-210 

Elliott  V.  Armstrong. 

Bill,  and  payable  to  Elliott  or  order,  was  delivered  up  to 
Vance  by  Horner,  as  the  principal  part  of  the  considera- 
tion for  the  lot.  But  it  is  a  ^^reat  matter  of  dispute  be- 
tween the  parties,  as  to  whom  that  note  properly  be- 
longed at  the  time  it  was  so  delivered  up  to  Vance;  to 
wit,  in  October,  1812.  The  complainant  contends  that  it 
was  the  property  of  Horner.  It  is  in  proof  that,  in  1806, 
this  note  against  Vance  and  Dill  was  delivered  by  Elliott 
to  Ruffin,  without  endorsement,  as  a  collateral  security; 
to  be  collected  by  him,  in  case  he  should  have  to  pay  the 
debt  of  about  66  dollars  due  to  Vattier.  This  was  certain- 
ly no  sale  of  the  note  to  Ruffin.  It  was  a  mere  pledge 
for  the  security  of  a  debt;  and  the  general  property  of 
the  note,  at  all  events,  continued  in  Elliott.  By  this 
pledge,  Ruffin,  at  most,  had  but  the  special  property  and 
the  right  of  possession,  which  belonged  to  a  bailee;  and 
even  after  he  had  paid  Vattier,  probably  in  1807,  he  was 
only  entitled  to  collect  the  note  in  Elliott's  name,  and  pay 
himself  for  his  advance  to  Vattier,  out  of  the  proceeds. 

In  1812,  this  pledged  note  was  sold  by  Ruffin, 
[*210]  the  pledgee,  to  *Horner;  and  it  is  upon  this  sale 
alone  that  Horner's  right  to  the  note,  when  he  de- 
livered it  to  Vance,  is  founded.  That  Ruffin  had  no  power 
to  sell  this  note  in  1812,  is  contended  for  by  the  defend- 
ant; on  the  ground  that  Ruffin  had  been,  a  year  and  a 
half  before,  repaid  the  debt  for  which  the  note  was 
pledged.  It  is  evident  from  Ruffin's  calling  upon  Vance 
in  1807  for  payment,  and  from  his  inquiries  of  Percival 
in  the  saine  year,  if  Elliott  had  left  any  property  that  he 
could  attach,  that  Ruffin  was  determined  to  be  repaid 
ver}"  soon,  if  possible.  We  have  the  positive  testimony 
of  Percival,  the  defendant's  agent,  that  when  thus  inquired 
of  by  Ruffin,  to  wit,  in  1807,  he  gave  him  the  note  against 
Brown,  which  was  for  87  dollars  and  50  cents,  and  told 
him  to  make  his  money  out  of  that.  It  is  proved  that 
afterwards,  in  the  same  year,  a  judgment  on  this  note 
against  Brown  was  obtained  in  Elliott's  name  at  Cincin- 

(245) 


210-211    SUPREME  COURT  OF  INDIANA. 

Elliott  r.  Armstrong. 

nati,  where  Riiffin  lived;  that  when  the  sheriti'  gave  to 
his  deputy  an  execution  in  the  case,  he  directed  him  to 
pay  over  to  Rufiin  any  money  he  might  collect  on  it ;  that 
the  deputy  sheriff  asked  and  received  instructions  in  this 
business  from  Ruffin ;  and  that  the  w^hole  amount  of  this 
judgment  against  Brown  was  finally  collected  on  execu- 
tion, during  Elliott's  absence  from  the  country.  We  have 
also  in  evidence  the  receipt  itself  to  the  sheriff  for  82  dol- 
lars signed  by  Rulfin,  dated  long  before  his  sale  to  Hor- 
ner of  the  pledged  note,  to  wit,  the  12th  of  October,  1810, 
and  expressed  to  be  in  part  payment  of  the  execution  in 
this  case.  These  are  strong  proofs  of  the  re-payment  to 
Ruffin,  in  the  manner  and  at  the  time  alleged  by  the  de- 
fendant. 

The  complainant  has  attempted  to  weaken  the  force  of 
this  testimony,  by  the  deputy  sheriff's  statement,  that  he 
had  seen  a  receipt  for  50  dollars  and  50  cents  in  the  case 
against  Brown,  given  by  Thomas,  he  thinks,  as  attorney; 
and  by  Horner's  deposition,  that  Ruffin  had  told  him  that 
what  money  he  had  received  on  the  judgment  against 
Brown,  he  had  paid  to  Percival.  These  circumstances 
amount  to  nothing.  The  receipt  of  Thomas  was  not  pro- 
duced, nor  was  its  absence  accounted  for.  Besides  Thomas' 
authority  does  not  appear,  St.  Clair  being  the  only  attor- 
ney on  record.  As  to  what  Horner  says,  relative  to  Ruf- 
fin's  telling  him  that  he  had  paid  to  Percival  the  money 

due  from  Brown,  it  is  mere  hearsay  testimony. 
[*211]    Ruffin  himself  was  *a  witness  in  the  cause;  and 

if  he  had  not  received  or  retained  the  money,  for 
which  he  receipted  to  the  sheriff",  he  was  the  proper  per- 
son to  be  called  on  to  explain  the  transaction.  Percival, 
too,  was  a  witness,  and  he  could  have  told  whether  Ruffin 
had  ever  paid  to  him  this  money.  The  complainant,  how- 
ever, did  not  think  proper  to  ask  either  Ruffin  or  Per- 
cival a  single  question  on  this  subject;  and  he  must  con- 
sequently submit  to  the  presumption  against  his  second- 

(246) 


MAY  TERM,  1829.  211-212 

Elliott  V.  Armstrong. 

ary  evidence,  Avhich  the  want  of  that  inquiry  necessarily 
creates. 

The  defendant's  evidence,  therefore,  on  this  part  of  the 
case,  stands  nnimpeached,  and  settles  the  fact,  that  in  1810 
Ruffin  received  82  dollars  from  Elliott's  judgment  against 
Brown.  That  amount  was  at  least  equal  to  Rufiins 
claim  for  having  paid  the  debt  due  to  Yattier ;  which,  m 
1807,  did  not  exceed  66  dollars.  It  follows,  that  in  1810 
the  debt  was  paid  to  Ruffin,  to  secure  which  the  note 
against  Yance  and  Dill  had  been  pledged  to  him.  That 
payment  to  Ruffin  put  an  end  to  his  control  over,  the 
pledged  note.  From  the  time  of  that  payment,  the  absolute 
right  of  property  and  the  right  of  possession  in  the  note, 
were  vested  in  Elliott.  The  consequence  is  inevitable, — 
the  sale  of  the  note  in  1812,  about  a  year  and  a-half  after  the 
payment  of  the  debt  for  which  it  was  pledged,  was  made 
by  Ruffin  to  Horner  without  authority,  and  this  unlawful 
'Conversion  of  Elliott's  property  subjected  Ruffin  to  an 
action  of  trover. 

Perhaps,  however,  it  may  be  said  that  Horner,  by  the 
purchase  from  Ruffin  for  a  valuable  consideration,  became 
the  owner  of  the  note,  although  Ruffin,  at  the  time  had 
no  property  in  it,  nor  any  authority  to  sell  it.  In  the  sale 
of  personal  property,  not  in  market  overt,  the  general 
rule  is,  that  though  the  purchase  be  bojia  fide  and  for 
value,  the  purchaser  can  receive  no  better  title  than  that 
of  which  the  seller  was  possessed;  and  must,  at  all  times 
yield  to  the  claim  of  the  rightful  owner.  To  this  general 
rule,  how^ever,  there  is  an  exception  in  favor  of  negotiable 
instruments,  such  as  bills  of  exchange  and  promissory 
notes.  When  these  are  originally  made  payable  to  bearer ; 
or  when,  in  the  first  instance,  they  are  payable  to  order 
and  afterwards  by  a  blank  endorsement  become  payable 
to  bearer;  they  pass  by  <^f /if  ^r?/;  and  the  purchaser  of  them 
who  uses  due  caution,  pays  a  valuable  consideration,  and 
takes  them  in  the  course  of  business,  has  a  good 
[*212]    title  against  all  the  '''world,  whether  the  seller  had 

(247) 


212  SUPREME  COURT  OF  INDIANA. 

Elliott  r.  Armstrong. 

any  title  or  not.  Wookey  v.  Pole,  4  Barn.  &  Aid.  6. 
Upon  looking  at  this  note,  which  was  pledged  to 
Ruffin  and  sold  by  him  to  Horner,  we  find  at  once,  that 
it  is  not  that  kind  of  negotiable  instrument  which  comes 
within  the  exception  in  favor  of  commerce.  It  was  paya- 
ble only  to  Elliott  or  order,  and  Elliott  had  not  endorsed 
it,  nor  had  any  person  for  him  ;  consequently  it  was  not 
payable  to  bearer,  and  could  not,  like  a  bank  note,  be 
transferred  by  a  bare  delivery.  Whether  the  property  in 
this  note  could  pass  without  endorsement,  under  any  cir- 
cumstances, need  not  be  considered.  Supposing  it  could, 
the  transfer  in  such  case  must  be  governed,  not  by  com- 
mercial law,  but  by  the  rules  which  regulate  the  sale  of 
ordinary  goods,  out  of "  market  overt.  Horner  could  re- 
ceive no  better  title  than  Ruffin  had.  The  buyer  was  not 
liable  to  any  imposition  in  this  case,  the  want  of  Elliott's 
endorsement  being  sufficient  notice  that  the  note  was  still 
his;  and  when  Horner  bought  it,  he  did  so  at  the  risk  of 
Ruffin's  having  no  authority  to  sell  it.  This  would  be 
the  case,  even  if  Ruffin  had  endorsed  the  note  in  Elliott's 
name,  having  no  authority  to  do  so;  because  the  law  is, 
that  if  one  man  acts  by  the  authority  of  another,  those 
dealing  with  him  must  look  to  his  authority.  De  Douch- 
out  V.  Goldsmid,  5  Ves.  Jun.  211.  This  part  of  our  case  is 
explained  by  the  following  authority :  Maclish  being 
owner  of  a  ship,  let  it  to  the  commissioners  of  the  navy; 
and  by  a  letter  of  attorney  empowered  Todd  to  receive 
the  profits,  give  discharges,  and  do  everything  relative  to 
the  premises  which  Maclish  could  do.  Todd  received 
from  the  commissioners  of  the  navy,  a  navy  bill  for  1200 
pounds  payable  to  Maclish  or  his  assigns;  and  sold  it  to 
Hawkes  for  a  fair  price  ;  and  Hawkes  for  a  fair  price  sold  it 
to  Ekins.  Maclish  afterwardsbrought  an  action  of  trover 
against  Ekins  and  recovered.  The  Court  observed  that  it 
liad  been  truly  said,  that  the  property  in  a  bank  note,  if 
delivered  in  the  course  of  trade  for  valuable  consideration, 
does    pass  by  delivery;  but  that  it  is   as  true,  that  the 

(248) 


MAY  TERM,  1829.  212-213 

Elliott  t'.  Armstrong. 

property  in  a  navy  bill  can  not  pass  without  assignment; 
as  Todd  had  no  power  to  assign  the  bill,  the  maxim  caveat 
emptor  applied  to  the  case.  Maclish  v.  Ekins,  Sayer's  Rep. 
73. 

With  respect  to  this  part  of  the  case,  therefore,  it  ap- 
pears to  us,  that  at  the  time  of  the  sale  of  the  note  against 
Vance  and  Dill  by  Ruffin  to  Horner,  to  wit,  in 
[*213]  1812,  the  debt  had  been  *paid  for  which  the  note 
was  pledged,  and  that  the  right  both  of  property 
and  of  possession  in  it  was  then  in  Elliott;  that  Ruffin 
had  no  authority  to  dispose  of  the  note ;  and  that  as  it 
was  payable  only  to  order,  and  was  not  endorsed,  Horner 
acquired  no  property  in  it,  although  he  paid  for  it  a  valu- 
able consideration. 

As  the  delivering  up  of  this  note  to  Vance,  formed  the 
greater  part  of  the  consideration  for  the  lot  in  dispute  ; 
and  as  the  payment  of  that  consideration  by  Horner  out 
of  his  own  money,  is  the  foundation  of  the  complainant's 
bill,  this  decision — that  Horner  never  had  any  j^'t'operty  in 
that  note — goes  very  far  towards  settling  the  whole  of  this 
case. 

The  trifling  balance  of  the  consideration  for  the  lot,  was 
paid  by  Horner  out  of  his  own  money.  AVhether  the 
smallness  of  this  sum  is  any  objection  to  the  complainant's 
following  it  into  the  lot,  if  he  be  otherwise  entitled,  we 
shall  not  stop  to  inquire  ;  but  we  will  take  it  for  granted 
that  it  is  no  objection.  This  introduces  the  second  prin- 
cipal subject  of  inquiry,  which  is,  whether  the  presumjyfion 
of  a  trust  to  Horner,  arising  from  this  payment,  is  rebutted 
by  the  defendant's  evidence? 

From  an  examination  of  the  testimony,  it  appears  to  iis 
that  the  object  of  Horner,  in  paying  this  little  balance  to 
Vance,  was  not  to  make  a  purchase  from  him  of  a  bene- 
ticial  estate  in  the  lot  in  proportion  to  that  amount.  It 
seems  to  have  been  paid  for  Elliott  by  Horner,  merely  to 
induce  Vance  to  perform  his  contract  with  Elliott  b}'  con- 
veying to  him  the  absolute  title,  and  thus  to  cause  the  lot 

(249) 


213-214    SUPREME  COURT  OF  INDIANA. 

Elliott  r.  Armstrong. 

to  be  made  subject  to  Horner's  judgment  against  Elliott. 
The  following  extract  from  the  deposition  of  Horner's  at- 
torney very  clearly  explains  this  part  of  the  case  ;  though 
the  occasion,  really,  seems  not  to  require  so  particular  ref- 
erence to  it: 

"In  1810,  or  1811,  after  this  deponent  had  commenced 
the  practice  of  law,  he,  together  with  Symmes,  was  em- 
ployed by  Horner  to  sue  out  and  conduct  an  attachment 
against  Elliott,  either  as  an  absconding  or  non-resident 
debtor;  and  they  prosecuted  the  suit  to  final  judgment, 
which  was  obtained  in  June,  1811.  In  March,  1812, 
Symmes,  Horner,  and  the  deponent,  consulted  together  on 
the  best  probable  method  of  securing  Horner's  debt ;  and 

inasmuch  as  lots  in  Lawrenceburgh  had  then  con- 
[*214]    siderably  increased  in  value,  and  might  still  *in- 

crease,  they  concluded  Horner's  best  method  would 
be  to  perfect  Elliott's  title  to  the  lot,  if  Vance  would  con- 
sent, and  then  to  execute  and  sell,  and  become  the  pur- 
chaser. Horner,  the  deponent,  and  perhaps  Symmes, 
went  to  Vance,  and  inquired  of  him  whether,  if  Horner 
paid  up  and  fulfilled  Elliott's  contract,  he,  Vance,  would 
make  the  title  to  Elliott  ?  After  some  conversation  with 
Vance,  and  perhaps  some  persuasion  from  the  deponent, 
Vance  consented,  more  especially  as  the  deponent  urged 
the  matter  as  the  only  method  likely  to  secure  Horner. 
Horner  then  went  to  Cincinnati,  and  purchased  the  note 
against  Vance  and  Dill  (as  deponent  supposed,  because 
he  returned  from  thence  with  the  note  in  his  possession). 
He  delivered  the  note  to  Vance,  and  paid  the  residue  of 
the  purchase-money  for  the  lot,  which  was  in  all  perhaps- 
75  dollars.  We  then  executed  and  sold  the  lot  as  Elliott's 
property,  to  wit,  lot  number  171,  in  the  town  of  Law- 
renceburgh, and  Horner  became  the  purchaser  for  75  dol- 
lars, as  the  deponent  believes." 

This  deposition  certainly  shows  that  here  was  no  new 
bargain  and  sale  between  Vance  and  Horner.  It  was  the 
merely  carrying  into  efi:ect  the  old  contract  between  Vance 

(250) 


MAY  TER:sr,  1829.  214-215 

Elliott  V.  Armstrong. 

and  Elliott.  This,  it  is  true,  was  to  be  for  Horner's  benefit ; 
not,  however,  by  vesting  in  him  the  beneficial  estate  in 
any  part  of  the  lot,  because  the  performance  of  Elliott's 
contract  could  not  do  that;  but  it  Avasto  be  for  his  benefit, 
by  vesting  in  Elliott  the  beneficial  as  well  as  the  legal  inter- 
est and  so  rendering  the  lot  subject  to  Horner's  judg- 
ment against  him.  No  words  could  make  the  matter 
plainer  than  this  deposition  does.  The  resulting  trust, 
contended  for  by  the  complainant,  is,  in  the  language  of 
Lord  Mansfield,  a  kind  of  arbitrary  implication  raised,  to 
stand  until  some  reasonable  proof  brought  to  the  contra- 
ry. Sugd.  418.  Supposing  that  the  payment  of  the  small 
balance  of  the  consideration,  had  it  stood  alone,  would 
have  raised  a  ■presumption,  that  the  deed,  though  made  to 
Elliott,  gave  a  beneficial  estate  in  the  lot  to  Horner  in 
proportion  to  that  small  sum  ;  yet,  undoubtedly,  this  mere 
presumption  of  law  must  yield  to  the  truth  of  the  case, 
when  it  is  shown  by  positive  testimony,  that  the  object 
of  Horner  in  making  this  payment  was,  in  direct  oppo- 
sition to  such  a  presumption,  to  cause  the  beneficial  estate 
to  be  vested  in  Elliott  conformably  to  the  face  of  the 
deed  ;  and  when  it  is  shown,  too,  that  after  the  exe- 
[*215]  cution  of  the  deed,  *Horner  treated  the  lot  as  Elli- 
ott's property,  by  having  his  execution  levied  upon 
it  as  such,  and  buying  it  himself  at  the  sheriff's  sale. 

This  management  of  Elliott's  business  for  him  in  his 
absence,  by  Horner,  was  ratified  by  Elliott  soon  after  his 
return  to  the  country;  and  the  special  benefit  which  had 
been  contemplated  by  Horner,  was  thus  confirmed  to  him. 
Upon  Elliott's  acceptance  of  the  deed,  the  case  stood  pre- 
cisely as  if  his  contract  with  Vance  had  been  completed 
by  himself  in  person,  instead  of  by  Horner  for  him.  By 
this  recognition,  Elliott  became  accountable  to  Horner 
for  the  balance  of  the  consideration  over  and  above  the 
note,  which  had  been  advanced  for  him  ;  and  the  liability 
of  the  lot,  as  Elliott's  propertv,  to  Horner's  judgment 

(251) 


215-216    SUPREME  COURT  OF  INDIANA. 

Elliott  r.  Armstrong. 

against  him.  from  the  date  of  the  deed,  was  thereby  es- 
tablished. 

It  appears  to  us,  therefore,  that  the  facts  accompanying 
the  small  advance  of  money  by  Horner  for  Elliott,  repel 
the  idea  of  any  implied  trust  jiro  tanio,  in  favor  of  Hor- 
ner, on  account  of  that  paj'ment.  Indeed,  it  seems  per- 
fectly clear,  that  it  was  8  or  10  years,  at  least,  after  Vance's 
deed  to  Elliott,  and  when  the  sheriff's  sale  to  Horner  had 
been  determined  to  be  void,  and  after  Elliott  had  recov- 
ered the  premises  in  the  action  of  ejectment,  that  the 
complainant,  looking  around  for  a  plank  in  the  shipwreck, 
was  the^rs^  to  think  of  the  resulting  trust  set  out  in  his 
bill. 

It  may  be  supposed,  perhaps,  that  we  should  notice,  be- 
fore we  conclude,  tlie  suggestions  of  mistake  and  fraud, 
made  by  the  complainant  for  the  purpose  of  showing  that 
the  defendant  .has  no  right  to  resist  the  claim  of  a  result- 
ing trust  set  up  in  the  bill.  It  is  true,  that  Horner  was 
under  a  mistake  in  supposing  the  lotto  be  Elliott's,  when 
he  levied  his  attachment;  but  it  is  also  true,  that  before 
he  had  thought  of  completing  Elliott's  contract,  that  mis- 
take was  rectified,  since  he  had  discovered  before  that 
time,  as  he  states  himself,  and  as  the  bill  states,  that  El- 
liott had  no  title  at  law  or  in  equit3\  As  to  the  idea  of 
Horner's  mistake  of  judgment  in  not  causing  the  deed  to 
be  made  to  himself,  instead  of  to  Elliott,  we  have  nothing 
to  do  with  that.  We  will  observe,  however,  that  as  the 
note  was  Elliott's  at  the  time,  the  policy  of  taking  the 

deed  to  Horner  was  not  so  clear  as  the  com];)lain- 
[*216]    ant  imagines.     It  is  further  contended  that  ^there 

is  a  fraudulent  concealment,  by  the  defendant  or 
his  agent,  of  the  claim  now  set  up  against  the  alleged 
trust.  We  have  not  been  able,  however,  to  discover  any 
fraud  in  the  case.  The  defendant  was  absent  himself,  and 
knew  nothing  of  the  proceedings.  If  his  agent  saw  the 
complainant  buying  the  lot,  and  making  improvements 
on   it,  he  might  honestly  think,  as  the  complainant  did, 

(252) 


MAY  TEHM,  1829.  216 

Washburn  and  Another  v.  Payne. 

that  the  sherifl"'s  sale  to  Horner  was  valid,  and  that  El- 
liott had  no  further  claim.  There  is  no  proof  that  the 
discovery  of  the  execution's  being  void  was  made  until 
after  Elliott's  return  and  acceptance  of  the  deed  in  1819, 
nor  indeed  at  an}'  time  before  the  commencement  of  his 
action  of  ejectment. 

From  the  general  view  which  we  have  now  taken  of 
this  cause,  we  have  come  to  the  conclusion  that  the  greater 
part  of  the  consideration  of  the  lot  was  the  property,  not 
of  Horner,  but  of  the  defendant;  and  that  the  small  bal- 
ance of  it,  paid  by  Horner,  was  paid  under  circumstances 
which  entirely  rebut  the  presumption  of  a  resulting  trust. 
We  are  also  of  opinion  that  there  was  no  mistake  or  fraud 
that  can  have  any  influence  on  the  case.  The  consequence 
is,  the  complainant  is  not  entitled  to  the  relief  prayed  for, 
and  the  Circuit  Court  should  have  dismissed  his  bill  upon 
the  merits.  The  decree  of  that  Court  in  favor  of  the  com- 
plainant is  erroneous,  and  must  be  reversed. 

Per  Curiam. — The  decree  is  reversed  with  costs.  Cause 
remanded,  with  directions  to  the  Circuit  Court  to  dismiss 
the  bill,  &c. 

Caswell,  Starr,  and  Dunn,  for  the  appellant. 

Lane  and  Stevens,  for  the  appellee. 


Washburn  and  Another  v.  Payne. 

Justice  of  the  Peace — Jurisdiction — Amount. — In  an  action  of  debt 
before  a  justice  of  the  peace,  on  a  bond  in  the  penalty  of  175  dollars  con- 
ditioned for  the  delivery  of  property,  the  plaintifT,  in  the  statement  of  his 
demand,  claimed  81  dollars  and  25  cents :  Held,  that  the  justice  had 
jurisdiction;  the  sum  actually  demanded  not  exceeding  100  dollars  (a) 

APPEAL  from  the  Vigo  Circuit  Court. — This  was  an 
action  of  debt  by  Payne  against  Washburn  and  Richard- 
son. 

(a)  Post  237  ;  7  Blkf.  343  ;  6  Ind.  344 ;  59  Id.  287  ;  6  Blkf.  425. 

(253) 


217  SUPREME  COUHT  OF  INDIANA. 

Reno  V.  Crane. 

['="217]  *ScoTT,  J. — On  a  bond  for  175  dollars,  with  con- 
dition for  the  delivery  of  certain  property,  an 
action  was  brought  before  a  justice  of  the  peace.  The 
plaintiff  below  in  stating  his  cause  of  action  before- the 
justice,  claimed  81  dollars  and  25  cents,  and  had  judg- 
ment to  that  amount.  Defendant  appealed  to  the  Circuit 
Court,  and  thence  to  this  Court.  The  statute  of  1827 
gives  jurisdiction  to  a  justice  of  the  peace,  where  the 
sum  clue  or  demanded  shall  not  exceed  100  dollars.  From 
the  phraseology  of  the  statute,  we  are  of  opinion  that  the 
intention  of  the  general  assembly  was  to  regulate  the 
jurisdiction  of  a  justice  of  the  peace,  not  by  the  amount 
named  in  the  bond,  on  which  suit  might  be  brought,  but 
by  the  amount  actually  claimed  or  demanded  by  the 
plaintiff.  The  amount  claimed  in  this  case,  and  alleged 
to  be  due  to  the  plaintift",  is  81  dollars  and  25  cents.  This 
sum  is  clearly  within  a  justice's  jurisdiction  under  the 
statute.  For  this  sum  judgment  was  rendered  by  the 
justice,  and  that  judgment  was  correctly  affirmed  by  the 
Circuit  Court  (1). 

Per  Curiam. — The  judgment  is  affirmed,  with  5  ^^er  cent. 
damages  and  costs. 

Judah]  for  the  appellants. 

Kinney,  for  the  appellee. 

(1)  "In  all  actions  of  debt  or  tismmpsit,  wherein  the  sum  rfwe  or  demanded 
shall  be  over  50  dollars  and  not  exceed  100  dollars,  exclusive  of  interest  and 
costs,  justices  and  Circuit  Courts  shall  have  concurrent  jurisdiction."  R. 
C.  1831,  p.  297. 


Reno  v.  Crane. 


Evidence — Entry — Partnership. — Held,  that  an  entry  in  the  partnership 
books  by  one  of  the  partners  in  the  business  of  a  saw-mill,  charging  him- 
self with  a  boat  which  he  had  built  at  the  mill, — might  be  introduced  by 
■him  as  evidence,  inter  alia,  to  prove  the  boat  to  be  his  individual  prop- 
erty. 

(254) 


MAY  TERM,  1829.  217-218 


Reno  V.  Crane. 


ERROR  to  the  Jackson  Circuit  Court. 
HoLMAN,  J.— Replevin  by  Reno  for  a  boat.     The  de- 
fendant pleaded  property  in  himself.     Verdict  and  judg- 
ment for  defendant.     A  bill  of  exceptions  shows,  that  the 
defendant  proved   by  several  witnesses,  that   he 
[*218]    built  the  boat  at  Fischli's  mills;  *and  that  while 
he  was  building  it,  he  frequently  declared  that  he 
was  building  it  for  himself;  that  the  materials  for  the 
boat  were  sawed  at  said  mills ;  and  that  the  boat  was  fin- 
ished in  December,  1826.     The  plaintiif  proved,  that  the 
defendant  and  Fischli  were  partners  in  the  mills  at  the 
time  the  boat  was  built;    and  that  the  partnership  ex- 
pended to   all  the   business  that  was   transacted  at  the 
mills;  that  the  partnership  expired  on  the  Ist  January, 
1827 ;  about  which  time  the  defendant  removed  from  the 
mills',  leaving  the  boat  on  the  premises  in  the  care  of  his 
agent;  that  Fischli,  the  other  partner,  came  into  the  sole 
possession  of  the   premises  directly  after  the  defendant 
removed,  and  sold  the  boat  to  the  plaintifl'  in  Jannary, 
1827,  for   the  sum  of  50   dollars.     The   defendant  then 
offered  to  read  from  a  book,  said  to  be  the  account  book 
of  Fischli  and  Crane,  and  endorsed  ledger  No.  1,  a  charge 
entered  in  said  book  in  his  own  hand-writing,  dated  the 
28th  of  December,  1826,  charging  himself  with  the  said 
boat  at  60  dollars,  after  proving   by  one  witness,  (who 
examined  the  said  book  and  found  an   account  against 
himself,)  that  he  believed  the  book  to  be  the  account 
book  of  Fischli  and  Crane ;  and  by  another,  that  the  book 
was  principally  made  out  by  him  in  his  hand-writing; 
that  in  May,  1826,  at  defendant's  request,  he  made  out 
part  of  the  book  and  finished  the  residue,  so  far  as  was 
done  by  him,  in  the  ensuing  December;  that  it  was  a 
copy  of  the  original  book  of  entries  of  Fischli  and  Crane, 
and    was  selected    from   day-books,  blotters,  and    docu- 
ments, some  of  which  were  in  Fischli's  hand-writing,  and 
was  an  exposition  of  the  whole  concern.     The  plamtitt 
objected  to  the  reading  of  the  entry  from  the  book,  but 

(255) 


218-219     SUPREME  COURT  OF  INDIANA. 

Millar  v.  Farrar, 

the  Circuit  Court  admitted  it  in  evidence  to  the  jury;  to 
which  the  plaintiff  took  his  exceptions. 

The  defendant,  it  seems,  was  the  active  partner  in  this 
firm,  and  transacted  the  principal  part  of  the  business, 
and  kept  the  entire  account;  and  anything  that  he  in 
good  faith  purchased  of  the  partnership  property,  became 
exclusively  his.  The  entry  of  the  purchase  of  the  boat  in 
the  partnership  books,  though  in  his  own  hand-writing, 
might  be  introduced,  among  other  circumstances,  to  show 
that  the  boat  was  his,  although  built  as  the  joini  prop- 
erty of  the  firm.  The  evidence  relative  to  the  book 
strongly  conduces  to  show  that  it  was  the  true  account 
book  of  the  firm;  and  as  the  bill  of  exceptions 
["^219]  nowhere  states  that  the  "^whole  of  the  eviaence  is 
set  forth,  the  presumption  is  conclusive  in  favor 
of  the  opinion  of  the  Circuit  Court. 

Pe?'  Curiam. — The  judgment  is  affirmed  with  costs. 

Howk,  for  the  plaintift'. 

Nelson  and  Farnham,  for  the  defendants. 


Millar  v.  Farrar. 


Error — Answer — In  Part. — If  a  jilea,  In  bar  of  a  writ  of  error,  answer 
only  a  part  of  the  errors  assigned,  it  is  bad  on  demurrer  (a). 

Same — Release  —Practice. — A  release  of  errors,  executed  for  the  purpose 
of  procuring  an  injunction,  may  be  pleaded  in  bar  of  a  writ  of  error,  al- 
though the  injunction  had  been  refused  and  the  bill  dismissed. 

ERROR  to  the  Dearborn  Circuit  Court. 

HoLMAN,  J. — Farrar  obtained  a  judgment  against  Mil- 
lar, on  scire  facias,  in  the  Dearborn  Circuit  Court,  the 
record  of  which  was  afterwards  consumed  by  fire.  A  mo- 
tion was  made,  agreeably  to  the  act  of  assembly,  to  rein- 
state said  judgment;    and  the  judgment  was  reinstated 

(a)  59  Ind.  483 ;  51  Id.  69. 

(256) 


MAY  TERM,  1829.  219-220 


Millar  v.  Farrar. 


accordingly.  To  reverse  which  this  writ  of  error  is  pro- 
secuted. Errors  are  assigned  in  the  original  judgment, 
in  the  notice  to  reinstate  the  judgment,  and  in  the  judg- 
ment as  reinstated. 

The  defendant  in  this  Court  pleads,  first,  in  nullo  est 
erratum.  Secondly,  a  release  of  all  errors  in  the  judg- 
ment on  scire  facias.  And  thirdl}',  that  after  the  rendi- 
tion of  the  judgment  on  scire  facias,  and  after  the  rendi- 
tion of  the  judgment  on  the  motion  aforesaid,  and  after 
the  reinstating  of  the  said  judgment,  the  said  Millar  made 
his  release  in  writing,  sealed  with  his  seal  and  filed  in  the 
clerk's  oflace  of  the  Dearborn  Circuit  Court  as  required 
by  law;  a  copy  whereof  duly  authenticated,  &c.,  is  to  the 
Court  now  shown,  whereby  he  released  all  errors  in  law 
in  the  proceedings,  rendering,  and  final  restoration  of  said 
judgment;  and  this  he  is  ready  to  verify,  &c.  The  plain- 
tiff demurs  to  the  second  plea.  To  the  third  plea  he  re- 
plies, that  the  release  in  said  plea  alleged  was  executed 
by  him,  at  the  time  in  said  plea  mentioned,  for  the  pur- 
pose of  procuring  an  injunction  to  stay  further  pro- 
ceedings on  said  judgment  at  law,  and  for  no  other  con- 
sideration whatever;  and  he  avers  that  he  wholly 
[*220]  *failed  to  procure  an  injunction,  and  that  he  has 
since  dismissed  his  bill  in  which  said  injunction 
was  prayed ;  and  this  he  is  ready  to  verify,  &c.  To  this 
replication  the  defendant  demurs. 

The  second  plea  is  not  good.  It  is  pleaded  in  bar  to 
the  writ  of  error,  but  it  only  answers  to  a  part  of  the  er- 
rors assigned.  The  plaintiff's  demurrer  must  therefore 
be  sustained.  The  release  set  forth  in  the  third  plea 
covers  the  whole  assignment  of  errors.  The  case  there- 
fore rests  on  the  validity  of  that  release.  That  release,  it 
seems  from  the  pleadings,  was  a  statutory  release,  filed  in 
the  clerk's  oflSce  for  the  purpose  of  obtaining  an  injunc- 
tion;  and  the  plaintiff'  contends  that  as  he  did  not  obtain 
an  injunction,  and  afterwards  dismissed  his  bill,  that  the 
release  is  not  obligatory  on  him.  In  support  of  this  posi- 
YoL.  II.— 17  (257) 


220-221   SUPREME  COURT  OF  INDIANA. 

Galletly  v.  The  Board  of  Justices  of  Owen  County. 

tioii  he  relies  upon  the  case  of  Clar^k  v.  Goofhcin,  1  Black- 
ford, 74.  But  the  release  in  that  case  had  no  legal  resem- 
blance to  this.  That  release  was  not  under  seal;  it  did 
.not  comply  with  the  statute;  and  for  the  purpose  fop 
which  it  was  filed  it  was  a  nullity.  As  the  party  that  ex- 
ecuted it  could  not  legally  obtain  any  advantage  by  virtue 
of  it,  no  principle  of  law  would  authorize  it  to  be  set  up 
against  him  as  an  effective  release.  Here  the  release,  un- 
der the  pleadings,  must  be  considered  as  good  and  valid 
in  itself,  and  when  filed  it  was  completely  operative  for 
all  the  purposes  for  which  it  was  executed.  It  immedi- 
ately inured  to  the  plaintiff's  benefit  to  the  full  extent 
contemplated  bylaw;  that  is,  it  removed  one  statutory 
barrier  out  of  his  way  in  obtaining  an  injunction.  If 
through  some  neglect  of  other  statutory  requisitions,  or  a 
want  of  equity,  he  failed  to  obtain  the  contemplated  re- 
lief, that  failure  could  not  have  a  retrospective  effect  and 
render  the  release  inoperative.  The  release  still  remains 
in  full  force,  and  the  plaintiff  by  virtue  thereof  may  even 
now,  or  at  any  time  hereafter,  obtain  an  injunction  to  stay 
any  proceedings  that  may  be  had  on  that  judgment,  pro- 
vided he  complies  with  the  other  necessary  prerequisites. 
The  release  is  therefore  well  pleaded  against  him,  and  is 
a  bar  to  the  writ  of  error. 

Per  Curiam. — The  writ  of  error  is  barred,  with  costs. 

Test,  for  the  plaintiff. 

Dunn,  for  the  defendant. 


[*221]    Galletly  w.  The  Board   of  Justices  of  Owen 

County. 

Title-Bond — Tender  of  Deed. — In  an  action  on  a  title-bond  conditioned 
to  make  a  deed  for  real  estate  on  payment  of  the  purchase-money,  the 
declaration  averred  a  payment  of  the  money  and  a  failure  to  make  the 
deed.     Plea,  that,  before  the  commencement  of  the  suit,  the  defendant 

(258) 


MAY  TERM,  1829.  221-222 

Hotchkiss  V.  Lyon  and  Others. 

had  tendered  the  deed,  which  was  refused ;  that  he  had  always  been 
ready,  and  was  still  ready,  &c.  Held,  on  demurrer,  that  the  plea  was 
good ;  it  not  appearing  but  that  the  payment  was  made  on  the  day 
the  deed  was  tendered  (a). 

ERROR  to  the  Owen  Circuit  Court. 

Scott,  J. — Samuel  Fain,  as  county  agent,  gave  his  bond 
to  make  Galletly  a  deed  for  a  lot  in  the  town  of  Spencer, 
on  the  payment  of  the  purchase-money;  with  a  proviso, 
that  no  deed  was  to  be  made  prior  to  the  17th  of  Octo- 
ber, 1822.  At  the  May  term,  1828,  Galletly  brought  suit 
on  the  bond,  and  assigned  as  a  breach  that  he  had  fully 
paid  the  price  of  the  lot,  yet  the  said  agent,  though  often 
requested,  had  not  made  the  deed,  &c.  The  defendants 
pleaded  a  tender  of  the  deed  before  the  commencement 
of  the  suit,  to  wit,  on  the  16th  of  May,  1827,  and  a  refusal 
b}'  the  plaintiff  to  accept  the  same,  and  that  since  that 
time  they  have  been  always  ready  and  are  still  ready,  &c. 
Demurrer  to  the  plea,  and  joinder,  and  judgment  for  the 
defendants.  The  record  shows  no  failure  on  the  part  of 
the  defendants.  Xo  time  is  mentioned  in  the  declaration 
when  the  alleged  payment  was  made.  For  aught  that 
appears  in  the  record,  it  might  have  been  on  the  same 
day  on  which  the  deed  was  tendered.  The  demurrer 
was  correctly  overruled  (1). 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Kinney,  for  the  plaintiff. 

Whitcomb,  for  the  defendants. 

(1)  The  plaintiff,  in  the  case  in  the  text,  could  not  recover,  unless  he  had 
demanded  a  deed  before  the  commencement  of  the  suit.  Vide  Sheets  v.  Atv- 
dreivs,  Nov.  term,  1829,  post. 


[*222]  'i'HoTCHKiss  V.  Lyon  and  Others. 

Evidence — Admission. — A.  entered  into  partnership  with  B.  in  the  busi- 
ness of  tanning;    and  C.  bound  himself  in  a  covenant  to  B.  for  A.'s  con- 

(a)  5  lud.  517  ;  57  Id.  34 ;  3-4  Id.  174 ;  25  Id.  168  f  4  Id.  224. 

(259) 


222  SUPREME  COURT  OF  INDIANA. 


Hotchkiss  V.  Lyon  and  Others. 


duct  as  a  partner  for  a  certain  time.  Held,  that,  in  an  action  by  B. 
against  C.  on  the  covenant,  the  admissions  of  A.,  made  after  the  expira- 
tion of  the  stipulated  time,  were  not  admissible  as  evidence  against  C. 

ERROR  to  the  Vigo  Circuit  Court. 

HoLMAN,  J. — Lyou,  Allen,  and  Creal,  as  the  sureties  of 
Burnett,  covenanted  with  Hotchkiss,  that  said  Burnett, 
whom  Hotchkiss  had  taken  as  a  partner  in  the  business 
of  tanning,  should  faithfully  discharge  his  duty  as  such 
partner,  and  fully  account,  &c.,  with  the  said  Hotchkiss 
for  and  during  the  term  of  two  years  from  the  11th  of 
January,  1823.  To  a  declaration  on  this  covenant  for 
breaches  in  the  year  1823,  the  defendants  pleaded,  among 
other  pleas,  that  said  Burnett  did  discharge  all  the  duties 
that  they  had  covenanted  that  he  should  discharge,  &c. ; 
on  which  issue  was  taken.  On  the  trial,  as  appears  by 
bills  of  exceptions  taken  by  the  plaintiff,  the  Circuit 
Court  refused  to  admit  the  plaintifi'  to  give  in  evidence 
the  admissions  of  Burnett,  made  in  the  year  1825,  that  a 
certain  book  offered  in  evidence,  w^as  the  account  book 
of  the  partnership  between  the  plaintiff  and  Burnett; 
and.  also  refused  to  admit  evidence  of  the  declarations  of 
Burnett,  made  in  1825,  that  he  had  received  certain  hides, 
&c.  The  defendants  obtained  a  verdict  and  judgment. 
The  plaintiff  appealed  to  this  Court, 

The  admissibility  of  Burnett's  declarations  as  evidence 
against  the  defendants,  presents  the  onl\'  question  in  dis- 
pute. In  the  case  of  The  Governor  v.  Shelby,  November 
term,  1826,  we  decided  that  a  judgment  against  the  sher- 
iff was  no  evidence  against  his  sureties  for  the  same 
demand.  The  cases  uniformly  support  that  decision. 
There  are  some  cases  which  were  urged  by  the  plaintiff 
in  that  case,  and  which  are  relied  on  in  support  "of  this 
appeal,  that  are  clearly  inapplicable.  They  decide,  that 
when  a  party  who  is  ultimately  liable,  has  notice  of  a 
suit  against  an  intermediate  party,  he  is  bound  by  a  de- 
cision against  that  intermediate. ])arty,  and  can  not  after- 
wards controvert    it.     But    a  judgment  as^ainst    a    prin- 

(260) 


MAY  TERM,  1829.  222-22^ 

Wilson  I'.  Oatman. 

cipal  is  in  no  case  conclusive  against  a  surety,  no  mat- 
ter on  what  ground  that  judgment  has  been 
[*223]  given.  "^In  this  case  judgment  against  Burnett 
even  by  confession,  would  have  been  no  evi- 
dence against  his  sureties;  but  a  judgment  against  the 
sureties  would  have  been  conclusive  against  Burnett  if  he 
had  been  legally  notified  of  the  action.  The  defendants 
w^ere  bound  for  the  conduct  of  Burnett,  during  the  term 
for  which  they  had  covenanted,  but  not  for  what  he 
might,  after  a  lapse  of  several  years,  be  induced  to  say  in 
relation  to  his  conduct  during  the  stipulated  term.  It  is 
true  that,  while  the  principal  is  acting,  his  declarations 
may  be  so  interwoven  with  his  acts,  as  to  stand  in  direct 
connection  with  them,  and  form  a  part  of  the  res  gestae, 
but  when  he  ceases  to  act,  his  subsequent  declarations 
have  no  direct  connection  with  his  preceding  acts,  so  as 
to  bind  his  sureties.  The  authorities  on  this  subject  place 
the  matter  beyond  dispute.  In  Evans  v.  Beattie,  5  Esp, 
R.  26,  it  was  decided,  that  if  A.  guaranty  the  payment 
of  such  goods  as  B.  shall  deliver  to  C,  the  declaration  of 
C.  of  his  having  had  goods  is  not  admissible  to  prove  the 
fact  against  A.  The  delivery  of  the  goods  must  be 
proved.  See  also  the  cases  of  Bacon  v.  Chesney,  1  Stark. 
R.  192;  Dunn  v.  Slee,  Holt's  Cas.  399;  Beall  v.  Beck,  3 
Har.  &  M'Henry,  242;  Bespublica  v.  Davis,  3  Yeates,  128; 
8  Stark.  Ev.  1386.  We  are  therefore  of  opinion  that  the 
evidence  was  properly  rejected. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Dewey,  for  the  plaintiff. 

Kinney,  for  the  defendants. 


"Wilson  v.  Oatman. 


Dower— In  Improvemexts. — After  the  alienation  of  real  estate,  and  be- 
fore the  death  of  the  grantor,  the  value  of  the  estate  was  greatl;,  enhanced 

(261) 


223-224   SUPREME  COURT  OF  INDIANA. 

AVilson  V.  (J.itiiian. 

by  improvements  made  by  the  grantee.  Held,  that  the  dower  of  the 
grantor's  widow  should  be  assigned  according  to  the  value  of  the  prop- 
erty at  the  time  of  the  alienation  (c/). 
Same — Value — Coxveyaxce — Title-Bond. — A  title-bond,  conditioned  for 
the  conveyance  of  real  estate  on  payment  of  the  purchase-money,  was  ex- 
ecuted, and  possession  at  the  same  time  given  to  the  obligee.  The  pur- 
chase-money was  afterwards  paid,  and  a  title  obtained  by  the  purchaser. 
Held,  that  the  date  of  the  bond  must  be  considered  the  period  of  aliena- 
tion, in  estimating  the  value  of  the  property  with  a  view  to  the  dower  of 
the  obligor's  widow. 

ERROR  to  the  Floyd  Circuit  Court. 

Blackford,  J. — George  Oatman,  the  husband  of 
[*224]  the  ^defendant  in  error,  was  seized  in  his  life-time 
of  67  acres  and  a-half  of  land,  in  Floyd  county. 
On  the  18th  of  March,  1810,  Wilson,  the  plaintift'in  error, 
purchased  this  land  from  Oatman,  received  a  bond  con- 
ditioned for  a  title  to  be  made  on  payment  of  the  pur- 
chase-money, and  was  put  into  possession  of  the  premises. 
The  payment  of  the  purchase-monej-  was  completed  in 
March,  1819.  Oatman  died  in  1821,  without  having  exe- 
cuted a  deed  to  Wilson.  In  1824,  Wilson  applied  to  the 
Probate  Court,  and  obtained  the  legal  title  for  the  land, 
according  to  his  bond.  At  the  date  of  the  title-bond, 
to  wit,  in  1816,  the  only  improvements  on  the  land  were 
two  small  cabins,  and  about  6  acres  cleared  and  fenced. 
But  previously  to  Oatman's  death,  which  was  in  1821, 
Wilson  had  cleared  and  improved  40  acres  of  the  laud  fit 
for  cultivation  ;  planted  an  orchard;  and  erected  buildings 
worth  3,000  dollars.  In  1827,  the  widow  Oatman,  who  is 
the  defendant  in  error,  brought  the  present  suit  to  obtain 
her  dower ;  and  commissioners  were  accordingly  appointed, 
under  the  statute,  to  assign  and  set  it  off  to  her.  In  the 
appointment  of  the  commissioners,  the  Circuit  Court  di- 
rected them  that,  in  their  assignment  of  the  dower,  they 
should  take  into  consideration  the  situation  of  the  prem- 
ises, at  the  time  of  the  decease  of  the  husband.  The  com- 
missioners upon  an  examination  of  the  premises,  were  of 

(a)  3  Ind.  343. 

(262) 


MAY  TEKM,  1829.  224-225 

Wilson  V.  Oatman. 

opinion,  that  no  division  of  the  property  could  be  made 
by  metes  and  bounds.  They,  therefore,  assigned  the 
dower  specially,  agreeably  to  the  statute,  by  allowing  to 
the  doweress  the  one-third  of  the  annual  value  of  the  prem- 
ises, to  wit,  50  dollars,  to  be  paid  to  her  annually  during 
her  life.  In  fixing  upon  the  amount  of  the  dower,  the 
commissioners  were  governed  by  their  estimate  of  the 
value  of  the  property  at  the  time  of  Oatman's  death,  in- 
cluding the  improvements  made  by  Wilson,  the  plaintiff 
in  error,  subsequently  to  the  date  of  his  title-bond,  and  of 
his  being  put  into  possession.  The  report  was  objected  to 
by  Wilson,  but  was  confirmed  by  the  Circuit  Court;  and 
there  was  judgment  accordingly. 

The  only  error  assigned  is,  that  the  amount  of  the 
dower  was  determined,  by  estimating  the  value  of  the 
land,  with  the  improvements,  at  the  time  of  the  husband's 
death;  whereas,  it  is  contended,  it  should  have  been  de- 
termined, by  an  estimate  of  the  value  at  the  date  of  the 

bond.  The  law  may  be  considered  as  settled,  that 
[*225]    in  case  of  alienation  of  the  land  by  the  *husband, 

the  time  when  the  husband  alienated  the  estate, 
not  that  of  his  death,  is  the  proper  period  at  which  to  esti- 
mate the  value  of  the  propert}^  with  a  view  to  dower.  Hale 
y.  James,  6  Johns.  Ch.  Rep.  258.  In  the  case  we  are  con- 
sidering, the  purchase  was  made,  the  title-bond  given, 
and  the  possession  delivered,  on  the  18th  of  March,  1816 ; 
thousrh  the  deed  was  not  executed  until  it  was  directed 
to  be  executed  agreeably  to  the  contract,  by  an  order  of 
the  Probate  Court,  in  1824,  some  years  after  the  hus- 
band's death.  Under  these  circumstances,  we  think,  that 
the  execution  of  the  deed  must  relate  back  to  the  time  of 
the  original  contract  and  possession  ;  and  that  the  date  of 
that  contract  must  be  considered  to  be  the  period  of 
alienation,  in  estimating  the  value  of  the  property  with  a 
view  to  the  dower  of  the  defendant  in  error.  If  the  im- 
provements, made  by  the  purchaser  subsequently  to  his 
contract  and  possession,  were  to  be  taken  into  considera- 

(263) 


225-226    SUPREME  COURT  OF  INDIANA. 

Wilson  ('.  Oatiuan. 

tion  in  the  estimate  of  dower,  in  cases  like  tlie  present, 
tlie  rule  would  tend  to  discourage  the  making  of  improve- 
ments, and  would  be  contrary  to  the  policy  of  the  country. 
(1).  The  judgment  of  the  Circuit  Court,  therefore,  con- 
lirming  the  report  of  the  commissioners,  together  with  so 
much  of  the  order  by  which  they  were  appointed,  as 
directs  them  in  their  assignment  of  the  dower,  to  take 
into  consideration  the  situation  of  the  premises  at  the  time 
of  the  death  of  the  husband,  must  be  reversed ;  and  the 
cause  remanded  for  further  proceedings. 

Per  Curiam. — The  judgment  is  rovcrsod.  jvp.d  the  pro- 
ceedings, &c.,  are  set  aside,  with  costs.  Cause  remauJ- 
ed,  &c. 

Ndson,  for  the  plaintiff. 

Farnharn,  for  the  defendant. 

(1)  Judge  Story,  in  a  case  on  this  subject,  speaking  o£  C.  J.  Tilghman's 
opinion  in  Thompson  v.  Morrmv,  5  S.  &  R.  289,  says :  "  In  his  own  language 
I  can  state,  that  'with  respect  to  dower,  I  have  found  no  adjudged  case  in 
the  Year  Books,  confining  the  widow  to  the  value  at  the  time  of  the  alien- 
ation by  her  husband,  where  the  question  did  not  arise  on  improvements 
made  after  the  alienation,  and  that  having  considered  all  the  authorities  which 
bear  upon  the  question,  I  find  myself  at  liberty  to  decide  according  to  what 
appears  to  me  to  be  the  reason  and  the  justice  of  the  case,  which  is,  that  the 
widoiv  shall  take  no  advantage  of  the  improvements  of  any  kind  made  by  the  pur- 
chaser, but  throwing  those  out  of  the  estimate,  she  shall  be  endowed  ac- 
cording to  the  value  at  the  time  her  dower  shall  be  assigned  to  her.' 
This  doctrine  appears  to  me  to  stand  upon  solid  principles,  and  the  general 
analogies  of  the  law.  If  the  land  has,  in  the  intermediate  period,  risen  in 
value,  she  receives  the  benefit ;  if  it  has  depreciated,  she  sustains 
[*'226]  the  loss.  Her  title  is  consummate  by  her  husband's  *death,  and  in 
the  language  of  Lord  Coke,  that  'title  is  to  the  quantity  of  the  land, 
viz.  one  just  third  part.'  If,  on  the  other  hand,  the  value  of  the  land  has 
increased  solely  from  the  improvemenis  made  upon  it,  and  without  those 
improvements  it  would  have  remained  of  the  same  value  as  at  the  time  of 
the  alienation,  the  old  value,  and  not  the  improved  value,  is  to  be  taken 
into  consideration.  For  practical  purposes,  it  is  impossible  to  make  any 
distinction  between  the  value  of  the  improvements  and  the  value  resulting 
from  the  improvements ;  between  improvements  vvhich  operate  on  a  part 
of  the  land,  and  those  which  operate  upon  the  whole."  Powell  v.  The  M.  & 
B.  M.  Co.  3  Mason,  347,  374. 

Chancellor  Kent  says:  "The  better,  and  the  more  reasonable  general 
American  doctrine  upon  this  .subject,  I  apprehend  to  be,  that  the  improved 
value  of  the  land,  from  which  the  widow  is  to  be  excluded,  in  the  assign- 
ment of  her  dower,  even  as  against  a  purchaser,  is  that  which  ha,s  arisen 
from  the  actual  labor  and  money  of  the  owner,  and  not  from  that  which 
has  arisen  from  extrinsic  or  general  causes."     4  Kent's  Comm.  2  Ed.  OS. 

Land   is  mortgaged  by  the  husliaud,  who  continues  in  possession  and 

(264) 


MAY  TERM,  1829.  226-227 

M'Glimmery  v.  Brush,  in  Error. 

makes  improvements.  The  equity  of  redemption  is  afterwards  foreclosed 
or  released.  In  estimating  the  wife's  dower,  the  value  of  the  improvements 
must  be  taken  into  consideration ;  the  date  of  the  foreclosure  or  release  be- 
ing deemed  the  period  of  alienation.     4  Kent's  Comm.  2  Ed.  66. 


M'Glimmery  v.  Brush,  in  Error. 
Slander — Plaintiff's  Wife — Evidence. 

AN  action  of  slander  was  brought  by  Brush  against 
M'Glimmery,  for  words  charging  the  plaintiff  with  steal- 
ing, and  for  words  charging  him  and  his  family  with  mur- 
der. The  defendant  pleaded  not  guilty.  Held,  that  words 
charging  the  "Brush  family"  with  stealing,  or  with  mur- 
der, might  be  proved  by  the  plaintiff  to  show  malice;  but 
that  no  slanderous  words  spoken  of  the  plaintiff's  wife 
alone  were  admissible  as  evidence  in  this  action. 


The  State  v.  Cooper  and  Others. 

Recognizance — Indictment — Requisites. — A.,  B.,  and  C.  entered  into  a 
recognizance  for  A.'s  appearance  on  the  first  day  of  the  term  of  the  next 
Circuit  Court,  to  answer  a  charge  of  larceny.  On  the  first  day  of  the 
term  A.  failed  to  appear.  He  also  made  default  on  the  .second  day,  when 
the  recognizance  was  declared  forfeited,  and  a  scire  facias  issued  thereon 
returnable  to  the  next  term.  Plea  to  the  scire  facias,  that  no  present- 
ment or  indictment  had  been  found  against  A.,  though  since  the  date  of 
the  recognizance,  two  grand  juries  had  been  impaneled.  Held,  on  de- 
murrer, that  the  plea  was  insufficient  (a) 

[*227]        ^i'-EREOR  to  the  Owen  Circuit  Court. 

HoLMAN,  J. — E.  Cooper,  I.  Cooper,  and  11.  Matheny,  en- 
tered into  a  recognizance,  conditioned  that  E.  Cooper 
should  be  and  appear  before  the  Owen  Circuit  Court,  on 
the  first  day  of  the  next  term  of  that  Court,  to  answer  to 

(a)  25  Ind.  384 ;  6  Blkf.  212. 

(265) 


227  SUPREME  COURT  OF  IXDIAXA. 

The  State  i;  Cooper  and  Others. 

a  charge  of  larceny,  and  to  abide  the  decision  of  the 
Court,  &c.  On  the  first  day  of  the  next  term,  E.  Cooper 
fai'ed  to  appear,  and  his  bail  when  required  failed  to  pro- 
duce him  in  Court.  On  the  second  day  of  the  term,  E. 
Cooper  was  again  called  and  failed  to  appear;  and  his 
bail  were  again  required  to  produce  him  in  Court,  but 
they  again  made  default.  The  Court  then  declared  the 
recognizance  forfeited,  and  av\'arded  a  scire  facias  against 
the  principal  and  bail,  requiring  them  to  show  cause  why 
the  state  should  not  have  execution  against  them  on  the 
recognizance.  At  the  next  term,  the  defendants  pleaded 
to  the  scire  facias,  that  tliere  Avas  no  charge  of  larceny  in 
said  Court  against  E.  Cooper,  by  presentment  or  indict- 
ment, for  the  said  E.  Cooper  to  appear  and  answer  unto ; 
and  that,  since  the  said  supposed  recognizance  was  en- 
tered into,  two  grand  juries  had  been  impaneled  and 
sworn  in  said  Court  and  charged  to  inquire,  &c.,  and  that 
no  bill  of  indictment  or  presentment  had  been  found 
against  said  E.  Cooper ;  and  that  no  legal  charge  of  lar- 
ceny could  be  found  on  the  records  of  said  Court  against 
him.  The  attorney  for  the  state  demurred,  and  the  Cir- 
cuit Court  adjudged  the  plea  to  be  good,  and  gave  judg- 
ment for  the  defendants. 

Agreeably  to  a  suggestion  in  the  case  oi  Adair  \.  The 
State,  1  Blackf.  200,  this  recognizance  was  forfeited  on 
the  first  day  of  the  term  mentioned  in  the  recognizance, 
by  the  default  made  on  that  day,  and  a  judgment  of  for- 
feiture might  have  then  been  entered.  1  Chitt.  C.  L.  105; 
2  Com.  Dig.  45.  Yet  if  E.  Cooper  had  appeared  at  any 
subsequent  day  of  the  term,  and  no  indictment  or  pre- 
sentment had  been  found  against  him,  and  no  legal  rea- 
son given  why  he  should  be  longer  held  to  answer  to  the 
charge,  the  Court  might  have  discharged  him  and  his  bail 
from  their  recognizance.  But  the  simple  fact  that  no  in- 
dictment or  presentment  had  been  found  against  him 
would  not,  jjcr  se,  be  a  suflicient  ground  on  which  they 
could   claim  a  discharge,  as  there   might  be   cases  that 

(266) 


MAY  TERM,  1829.  227-228 


Jackson,  on  the  Demise  of  Taylor,  v.  Cullum. 


would  require  the  principal  still  to  be  held  to  answer  to 
the  charge,  although  no  bill  was  then  found  against 
r*228]    him.     The  passing  of  another  terra  of  *the  Court, 
and  the  holding  of  another  inquest  by  the  grand 
iury,  who  found  no  bill  against  E.  Cooper,  do  not  alter 
the  case ;  because  if  the  judgment  of  forfeiture  was  legally 
entered,  and  the  state  then  had  a  right  to  have  execution 
on  the  recognizance,  that  right  could  not  be  affected  by  a 
failure  to  make  out  a  charge  at  the  succeeding  term.     In 
strictness  of  law,  the  recognizance  was  forfeited,  and  the 
state  had  a  right  to  her  execution  on  it,  when  the  first  de- 
fault was  made.     Subsequent  indulgence  is  discretionary, 
and  can  not  be  claimed  by  the  defendants  as  a  matter  of 
rio-ht;  and  surely  the  lapse  of  time  necessary  for  eutorc- 
iiro-  the  right  of  the  state  agreeably  to  the  forms  ot   law, 
can  not  affect  the  right  itself.     We  therefore  consider  the 
plea  as  no  bar  to  the  action. 

Per   Cariani.—The  judgment   is  reversed  with   costs. 
Cause  remanded,  &c. 

Whitcomb,  for  the  state. 

Hester,  for  the  defendants. 


Jackson,  on  the  Demise  of  Taylor,  i'.  Cullum. 

EVIDENCE-SECONDARY-It  is  a  general  rule,  that  the  best  evidence  must 
be  o-iven  of  which  the  nature  of  the  case  is  capable. 

SAME-JUDGMENT.-If  any  instrument  of  writing,  or  even  the  record  of  a 
judgment,  be  lost  or  destroyed,  the  contents  may  be  proved  by  parol  evi- 
dence (a). 

ERROR  to  the  Dearborn  Circuit  Court.  Ejectment. 
Plea,  not  guilty.  Verdict  and  judgment  for  the  defend- 
ant. 

Scott,  J.— On   the  trial  of  this  cause    in  the  Circuit 

(a)  4  Ind.  109. 

(267) 


SUPREME  COURT  OF  INDIANA.    228-226 


Jackson,  on  the  Demise  of  Taylor,  v.  Cullum. 


Court,  after  tlio  plaintiff  bad  proved  a  legal  title  in  him- 
self, the  defendant  offered  parol  evidence  of  an  outstand- 
ing title,  founded- on  a  judgment,  an  execution,  a  levy, 
sale,  sherifl''s  deed,  and  a  return  of  execution,  all  de- 
stroyed by  fire.  This  evidence  was  objected  to  by  the 
plaintiff;  but  the  objection  was  overruled,  and  the  evi- 
dence was  permitted  to  go  to  the  jury;  and  this  is  the 
only  error  complained  of. 

On  the  subject  of  evidence,  the  general  rule  is  that 
the  best  attainable  evidence  shall  be  adduced  to  prove 
every  disputed  fact.     The  effect  of  this  rule  is,  that,  when, 

from  the  nature  of  the  transaction,  superior  evi- 
[^229]    dence  may  be  presumed  to  be  *  within  the  power 

of  the  party,  that  which  is  inferior  will  be  exclud- 
ed. But  when  it  is  manifest  that  evidence  of  a  higher 
degree  is  not  within  the  power  of  the  party,  that  of  a 
lower  degree  will  be  received;  and  the  general  rule  never 
excludes  the  best  evidence  which  can  be  procured.  1 
Stark  Ev.  391.  In  conformity  with  this  rule,  it  has  been 
held,  that  if  a  recovery  in  ancient  demesne  be  lost,  and 
the  roll  can  not  be  found,  parol  evidence  may  be  resorted 
to.  1  Stark.  Ev.  159.  In  the  case  of  Bilts  v.  Colvin,  14 
Johns.  R.  182,  parol  proof  of  a  matter  of  record  was  ex- 
cluded, on  the  ground  that  there  was  better  evidence  then 
within  the  power  of  the  party.  The  case  of  Jackson  v. 
Frier,  16  Johns.  R.  193,  was  decided  on  the  ground  that 
due  diligence  had  not  been  used  in  searching  for  the  deed 
alleged  to  be  lost.  In  both  these  cases  it  is  stated  that,  on 
proof  being  made  that  better  evidence  was  unattainable, 
parol  testimony  would  have  been  admitted.  In  the  case 
of  Hamilton's  lessee  v.  Swearingen,  Add.  R.  48,  parol  evi- 
dence was  offered  to  supply  the  placo  of  a  lost  deed,  but 
the  Court  refused  to  receive  it.  It  is  there  said,  that  in 
some  cases  such  testimou}^  must  be  received  from  neces- 
sity; but  it  is  of  so  dangerous  a  nature  that  necessity 
alone  can  justify  its  admission.  The  evidence  in  that 
case  was  offered   by  the  plaintiff,  who  mio;ht  have  taken 

(268) 


MAY  TERM,  1829.  229-230 

Dickerson  v.  Gray,  in  Error. 

steps,  before  he  commenced  his  suit,  to  restore  his  title. 
The  situation  of  a  defendant  is  not  so  favorable.  It  might 
not  be  in  his  power,  after  suit  brought  and  before  the  trial, 
to  have  the  title  restored  on  which  he  rested  his  defence; 
and  were  this  even  practicable,  such  a  proceeding  m^ght 
be  dependent  on  the  will  of  some  other  person,  under 
whose  title  he  found  it  necessary  to  protect  himself. 
Without  resting,  however,  on  the  distinction  between  the 
situation  of  a  plaintift'  and  a  defendant,  we  think  the  case 
o^ Hamilton's  lessee  v.  Su^ecmiigen  more  than  balanced  by  the 
doctrine  clearly  laid  down  in  other  ^ases,  where  the  prin- 
ciples are  founded  on  better  reason  and  tend  more  to  the 
furtherance  of  justice. 

In  the  case  under  consideration  no  doubt  is  suggested, 
and  it  is  believed  none  exists,  of  the  loss  of  the  papers 
proposed  to  be  supplied  by  oral  proof;  and  if  there  can  be 
any  case  in  which  parol  evidence  would  be  admitted  to 
supply  the  loss  of  a  deed  or  record,  we  can  not  easily  con- 
ceive of  one  in  which  necessity  would  more 
[*230]  strongly  urge  such  a  measure.  We  are  therefore  *of 
opinion  that  the  Circuit  Court  was  correct  in  suf- 
fering the  defendant's  evidence  to  go  to  the  jury. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Caswell  a,ud  Starr,  for  the  plaintiff. 

Dunn  and  Lane  and  Stevens,  for  the  defendant. 


Dickerson  v.  Gray  in  Error. 

Bastardy — Party  Plaintiff — Judgment  (a). 

THE  prosecution,  under  the  statute  for  the  support  of 
illegitimate  children,  should  be  in  the  name  of  the  state  (1). 

In  all  cases  in  which  the  state  takes  an  obligation  from 
an  individual  for  the  performance  of  any  duty,  it  should 
be  by  recognizance,  unless  the  law  otherwise  direct. 

(a)  1  Ind.  53 ;  3  Id.  564. 


230-231    SUPREME  COURT  OF  INDIANA. 

Brown  v.  Wyncoop. 

The  order  oftlio  Court,  in  a  case  of  bastardy,  after 
stating  what  sum  the  father  must  pay  for  the  mainte- 
nance of  the  child  should  be — that  the  defendant  pay  the 
money  to  the  person  who  shall  maintain  the  child,  or  be- 
come entitled  to  the  same  by  law  ;  and  that  he  enter  into 
a  .ecognizance  with  one  or  more  sureties,  for  the  perform- 
ance of  the  order. 

(1)  Slate  V.  Bradley,  Yo\.  1  of  these  Rep.  83;    Woodkirk  v.  Williams,  id.  110. 


Brown  v.  Wyncoop. 

Former  Adjudication — Ejectment.— If  a  defendant  in  ejectment  have  a 
legal  title  to  the  premises,  and  neglect  to  produce  it  in  that  action,  he  can 
not,  after  a  verdict  against  him,  obtain  an  injunction  of  the  proceedings 
at  law,  by  a  bill  in  chancery  founded  on  the  same  title. 

Ejectment — Fraudulent  Conveyance. — The  question,  whether  a  deed 
be  fraudulent  and  void  as  to  creditors,  may  be  examined  and  decided  in 
an  action  of  ejectment  (6). 

Former  Adjudication — Parties. — A  decree  in  chancery  is  not  binding  on 
a  person  who  was  not  a  party  to  the  suit  (c). 

ERROR  to  the  Franklin  Circuit  Court. 

Blackford,  J. — The  plaintifl' in  error  was  the  complain- 
ant below.  He  states  in  his  bill  that,  in  1825,  he  bought 
a  tract  of  land  from  Rossell  Sturdevant,  received  a  title- 
bond  for  it  at  the  time,  and  afterwards,  in  1827,  obtained 
from  him  a  deed;  that  Rossell  Sturdevant  had  bought 
the  land,  bona  fide,  from  Azor  Sturdevant,  in  1817, 
who,  in  the  same  year,  had  bought  it  from  John  Bates. 

He  further  states  that,  in  1819,  Schoonover,  the 
[*231]    ^assignee  of  Bates,  recovered  a  judgment  against 

Azor  Sturdevant  for  733  dollars  and  33  cents,  due 
for  the  consideration  of  the  land  as  the  complainant  be- 
lieves; that  the  land  was  levied  on  as  Azor  Sturdevant's, 
under  an  execution  on  this  judgment,  and  bought  at  the 
sheriif's  sale  by  Schoonover;  that  in  the  same  yenr,  1819, 

(b)  35  Ind.  44 ;  45  Id.  589.     (c)  27  Ind.  73. 

(270) 


MAY  TERxVI,  1829.  231 

Brown  v.  Wvncoop. 

Schoouover  sold  the  laud  to  Wyncoop,  the  present  de- 
fendant; that  after  the  sheriff's  sale,  Azor  Sturdevant 
paid  the  judgment  to  Schoouover,  who  agreed  to  enter 
satisfaction  on  it;  that  the  complainant,  under  his  pur- 
chase, has  kept  peaceable  possession  of  the  premises; 
that  the  defendant,  claiming  under  Schoouover,  filed  a 
bill  in  chancery  against  Rossell  Sturdevant,  in  his  ab- 
sence, alleging  that  the  deed  to  him  from  Azor  Sturde- 
vant had  been  made  to  defraud  Schoouover  out  of  his 
money;  that  the  defendant,  though  he  knew  of  the  com- 
plainant's claim,  did  not  make  him  a  party  to  the  chan- 
cery suit;  that  the  bill  was  taken  for  confessed,  in  Ros- 
sell Sturdevant's  absence,  and  the  conveyance  to  him 
from  Azor  Sturdevant  was  set  aside;  that  after  this  de- 
cree, the  present  defendant,  Wyncoop,  brought  an  action 
of  ejectment  against  the  complainant,  and  obtained  a 
verdict  against  him;  and,  in  consequence  of  the  said  de- 
cree, will  recover  the  possession,  unless  the  Court  inter- 
feres. The  bill  prays,  that  the  complainant  may  be  made 
a  party  to  the  former  chancery  suit  against  Eossell  Stur- 
devant; that  the  decree  ma}'  be  opened,  and  the  com- 
plainant allowed  to  answer  the  bill.  It  also  prays  an 
injunction  of  tlie  proceedings  at  law.  The  defendant 
demurred  to  the  bill;  and  the  Circuit  Court  sustained  the 
demurrer. 

We  have  no  doubt,  but  that  the  decision  of  the  Circuit 
Court  is  correct.  One  short  reason  is,  that  the  complain- 
ant had  every  opportunity,  in  the  action  of  ejectment,  to 
defend  the  cause  on  the  ground  of  his  deed  from  Rossell 
Sturdevant.  •  The  burthen  of  proof  of  that  deed's  being 
insufficient,  for  want  of  a  title  in  Rossell  Sturdevant,  lay 
upon  the  plaintiff  in  that  action.  The  decree  in  chan- 
cery against  Rossell  Sturdevant,  was  no  evidence  in  the 
ejectment  against  the  present  complainant,  because  he 
was  not  a  party  to  that  suit;  and,  consequently,  not 
bound  by  the  decree  in  it.  By  the  present  bill,  the  com- 
plainant only   seeks   for    an    opportunity  to    oppose  the 

(271) 


231-232    SUPREME  COURT  OF  INDIANA. 

Smith,  Administrator,  v.  Smith  and  Others. 

charge  of  fraud,  made  to  the  deed  by  which  his  grantor 
claimed   the    property.     The    opportunity  to   do 

[*232]  that  "was  given  to  the  complainant  in  the  ^action 
at  law.     The  demurrer  to  the  bill  was  correctly 

sustained. 

Per  Curiam. — The  decree  is  affirmed  with  costs. 
Rariden,  for  the  plaintiff. 
Caswell,  for  the  defendant. 


Smith,  Administrator  v.  Smith  and  Others. 

Practice — Dismissal. — A  complainant  in  chancery  may,  on  payment  of 
costs,  dismiss  his  bill  at  any  time  before  a  final  hearing,  provided  he  be 
not  in  contempt  (a). 

Contempt. — The  complainant's  mere  failure  to  comply  with  an  interlocu- 
tory order  of  the  Court,  does  not  of  itself  so  place  him  in  contempt,  as  to 
prevent  him  from  dismissing  his  bill  on  payment  of  costs. 

ERROR  to  the  Ripley  Circuit  Court. 

HoLMAN,  J. — The  complainant,  as  administrator  of  Sam- 
uel Smith,  deceased,  filed  his  bill  in  chancery,  in  the  Rip- 
ley Circuit  Court,  for  relief  against  a  settlement  of  his 
accounts  as  administrator,  in  the  Probate  Court.  The 
bill  admitted  the  sum  of  476  dolhirs  and  36  cents  to  be 
due  to  the  heirs  of  the  deceased.  The  answer  claimed 
more  than  was  adjudged  to  be  due  by  the  Probate  Court; 
and  called  upon  the  complainant  to  answer  interrogato- 
ries, &c.  The  Circuit  Court  made  an  order  that  the  com- 
plainant should,  on  a  certain  day,  pay  into  the  hands  of 
the  clerk  of  that  Court  the  amount  admitted  by  the  bill 
to  be  due.  With  this-  order  the  complainant  failed  to 
comply.  He  also  failed  to  answer  the  interrogatories  of 
the  defendants,  and  the}-  were  taken  as  confessed.  The 
complainant  then  moved  for   leave  to    dismiss  his  bill ; 

(a)  2  Ind.  90. 

(272) 


MAY  TERM,  1829.  232-233 

Doe,  on  the  Demise  of  Helm,  r.  Xewland  and  Another. 

which  leave  the  Circuit  Court  refused,  because  the  com- 
phiinant  was  in  contempt  for  not  obeying  the  aforesaid 
order  of  the  Court,  and  proceeded  to  enter  up  a  final 
decree  against  him. 

It  is  a  general  rule  that  a  complainant  may,  upon  pa}'- 
raent  of  costs,  dismiss  his  bill  at  any  stage  of  the  proceed- 
ings before  a  iinal  hearing.  1  Newl.  Ch.  Pr.  177.  Agree- 
ably to  Carrington  v.  Holly,  Dick.  280,  although  a  cause 
is  brought  to  a  hearing  and  an  issue  directed,  until  that 
issue  is  tried  and  there  has  been  a  determination,  let  the 
cause  be  in  what  stage  it  may,  the  complainant 
[*233]  may,  upon  motion,  dismiss  his  bill  upon  ^payment 
of  costs.  There  is,  however,  another  rule  of 
chancery  practice  equally  general,  viz.,  that  when  a  party 
is  in  contempt,  he  can  not  be  heard  until  he  clears  his 
contempt.  But  we  do  not  consider  that  the  complain- 
ant's non-compliance  with  the  order  of  the  Circuit  Court 
did  of  itself  fix  him  in  contempt,  in  the  technical  sense 
of  that  term.  It  was  certainly  a  ground  on  which  the 
Court  might  have  adjudged  him  to  be  in  contempt,  if  no 
explanation  was  ofi'ered  by  him;  but  standing  as  it  does 
in  this  case,  without  any  adjudication  upon  it,  it  can  not 
be  considered  as  such  a  contempt  as  precludes  him  from 
being  heard  in  the  case.  And  if  he  had  a  right  to  be 
heard  at  all,  he  had  a  right  to  dismiss  his  bill  on  payment 
of  costs.  The  Court,  however,  had  a  right  to  require  the 
costs  to  be  paid  or  secured  before  the  leave  wa-s  given. 

Per  Curiam. — The  decree  is  reversed.  Cause  remanded, 
&c. 

Stevens,  for  the  plaintiff. 

Dunn,  for  the  defendants. 


Doe,  on  the  Demise  of  Helm,  v.  Newland  and  Another. 

Evidence — Declarations  of  Gbantor — Note — Date  of  Debt.— A.  ob- 
tained judgment  against  B.  on  a  note,  and  purchased,  at  the  sheriff's  sale 
under  the  judgment,  a  tract  of  land  which  B.,  after  the  date  of  the  note  and 

Vol.  IL— 18  (273) 


233-23-i  SUPKEME  COURT  OE  INDIANA. 

Doe,  on  tlie  Demise  uf  Ikliii,  c.  Newlaml  and  Another. 

before  the  judgment,  had  conveyed  to  C.  A.  brouglit  an  action  of  eject- 
ment for  the  hind  against  C,  and  I  lie  (luestion  was,  whether  B.'s  deed  to 
C.  was  fraudulent  and  void  as  to  A. 
Held,  that  evidence  of  B.'s  having  stated,  that  the  consideration  of  the  deed 
to  C.  was  a  valuable  one,  was  not  admissible.  Held,  also,  that  the  note 
on  which  the  judgment  was  rendered,  was  admissible  to  show  the  exist- 
ence of  the  debt  before  the  date  of  the  deed. 

ERROR  to  the  Union  Circuit  Court. — Ejectment.  Plea, 
not  guilty.     Verdict  unci  judgment  for  the  defendants. 

Blackford,  J. — This  was  an  action  of  ejectment.  On 
the  trial  of  the  cause,  after  the  plaintiff  had  closed  his 
testimony,  the  defendants  introduced  a  deed  of  convey- 
ance executed  to  them  by  their  father,  Harrod  Newland, 
dated  the  20th  of  February,  1826,  for  the  premises  in  dis- 
pute. They  offered  a  witness  to  prove  that  the  vendor 
had  stated,  in  the  defendant's  presence,  at  the  time 
[*234]  the  deed  was  executed,  that  it  had  *been  given 
upon  a  good  and  valuable  consideration.  This 
evidence  was  objected  to,  but  was  admitted  by  the  Court. 
After  this  and  some  other  similar  testimony  had  been 
given  b}'  the  defendants,  the  plaintiff,  in  order  to  show 
the  deed  to  be  fraudulent  as  to  his  lessor,  offered  to  intro- 
duce, among  other  evidence,  a  promissory  note,  duly  ex- 
ecuted to  him  for  120  dollars,  given  by  Harrod  Newland, 
the  grantor,  and  dated  the  22d  of  October,  1822,  which 
was  long  before  the  date  of  his  deed  to  the  defendants. 
The  Court  rejected  this  evidence  on  the  ground  "that  it 
Avas  the  same  note  upon  which  the  suit  was  brought,  upon 
which  the  sheriff's  sale  took  place,  under  which  the  plain- 
tiff' claimed  title;  and  that  the  note  was  merged  in  the 
suit." 

We  have  no  doubt  in  this  case.  The  question  on  the 
trial  was,  whether  the  deed  to  the  defendants  by  their 
father  was  fraudulent  and  void  as  to  the  plaintiff's  lessor, 
in  consequence  of  the  grantor's  being  indebted  to  him  at 
the  date  of  the  deed?  To  determine  this  question,  it  was 
important  to  ascertain  what  had  been  the  consideration 

(274) 


MAY  TERM,  1829.  234-235 


Gamble  and  Others  v.  Cummins,  in  Error. 


of  the  deed.  The  dechiratious  of  the  grantor,  however, 
proved  by  the  defendants,  that  the  consideration  was  a 
vahiable  one,  should  not  have  been  admitted  by  the  Court. 
The  grantor  himself,  if  not  interested,  would  have  been 
a  good  witness  to  prove  the  consideration  and  support  the 
deed;  but  his  previous  declarations  on  the  subject  were 
mere  hearsay  evidence.  On  the  other  hand,  if  the  grantor 
was  interested,  the  defendants  could  not  introduce  him, 
much  less  his  previous  declarations,  to  support  the  con- 
veyance he  had  made  to  them.  With  respect  to  the  other 
point,  we  are  of  opinion  that  the  plaintiff,  in  attempting 
to  prove  the  deed  to  be  fraudulent  as  to  his  lessor,  had  a 
right  to  prove  that  the  note  to  him  by  the  grantor,  which 
was  offered  in  evidence,  was  in  existence  at  the  date  of 
the  deed.  The  judgment  and  sheriff's  sale,  mentioned 
by  the  Court  below,  could  not  possibly  be  any  objection 
to  the  proof  of  the  note,  under  the  circumstances  of  the 

case. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

Smith,  for  the  plaintiff. 

Dunn,  for  the  defendants. 


[*235]    *Gamble  and  Others  v.  Cummins,  in  Error. 

.Judgment — Assignment — To  whom  Paid. 

A  JUDGMENT,  after  being  replevied  by  the  execution 
of  a  replevin-bond,  was  assigned.  Held,  that  payment  by 
the  debtor  or  his  replevin-sureties  to  the  original  judg- 
ment-creditor, before  notice  of  the  assignment,  was  valid. 


Alcorn  v.  Harmonson. 


Contract— Lease— Breach— Remedy.— A  person  entered  into  possession 
of  real  estate  under  a  parol  contract,  by  which  the  lessee  was  to  have  a 
written  lease  for  the  premises  for  7  years,  and  was  to  make  certain  im- 
provements thereon.     After  a  part  of  the  work  had  been  done,  and  long 

(275) 


235-236    SUPREME  COURT  OF  IXDIAXA.  ■ 

Alcorn  v.  Hariuonson. 

before  the  expiration  of  the  term,  the  lessor  refused  to  execute  the  lease, 
and  obliged  the  lessee  to  quit  the  premises.  Held,  that  the  lessor,  having 
rescinded  the  special  contract,  was  liable  to  the  lessee,  in  indebitatus  as- 
sumpsit, for  the  work  performed  («)• 

ERROR  to  the  Marion  Circuit  Court. 

Scott,  J. — Actiou  on  the  case  on  promises,  before  a 
justice  of  the  peace.  Judgment  for  defendant.  Appeal 
to  the  Circuit  Court.  Verdict  and  judgment  in  the  Cir- 
cuit Court  in  favor  of  Ilarmonson,  the  appelhmt,  for  4b 
dollars  and  50  cents.    Writ  of  error. 

A  bill  of  exceptions,  made  part  of  the  record,  states 
that  Alcorn  agreed,  by  parol,  to  give  Harmonson  a  lease 
for  seven  years  of  an  unimproved  tract  of  land.  Ilar- 
monson was  to  clear  twenty  acres,  build  a  cabin,  dig  a 
well,  and  do  some  other  work,  and  was  to  have  a  lease  in 
writing.  In  pursuance  of  this  agreement,  Harmonson 
went  on  the  land,  cleared  about  nine  acres,  built  a  cabin, 
dug  a  well,  and  performed  certain  other  labor,  and  con- 
tinued on  the  premises  about  two  years.  Alcorn  refused 
to  execute  a  lease,  and  gave  Harmonson  notice  to  quit 
the  premises,  which  he  did  accordingly,  and  brought  this 
suit  to  recover  a  compensation  for  his  labor.  It  is  alleged 
here,  as  error,  that  the  contract,  being  by  parol,  was  void 
under  the  statute  of  frauds,  and  that  the  plaintiff  could 
not  recover  on  a  general   count  in   assumpsit,  on  proof 

of  a  special  agreement. 
[*236]  *This  agreement,  being  by  parol,  was  not  avail- 
able under  our  statute,  as  a  lease  for  seven  years; 
it  could  have  no  greater  force  or  effect  than  a  lease  at 
will.  The  lessor  had  the  power  to  determine  the  interest 
of  the  lessee;  which  he  did  b}'  giving  him  notice  to  leave 
the  premises;  and,  by  this  act,  he  rescinded  the  contract 
for  a  seven  years'  lease.  Where  money  has  been  paid, 
upon  a  contract  which  is  afterwards  rescinded  by  the  act 
of  the  defendant,  it  has  been  held  that  the  plaintiff  has  a 
riglit  to   recover  back  the  money.     2  Stark.  Ev.  116;  1 

(a)  1  Ind.  267  ;  13  Id.  494 ;  20  Id.  198. 

(276) 


MAY  TERM,  1829.  236-237 

Kelsey  v.  Dickson,  in  Error, 

T.  R.  133;  7  T.  R.  177.  And  no  reason  exists  why  the 
value  of  hibor,  performed  upon  such  a  contract,  should 
not  be  recovered  on  the  same  principle.  Although  the 
parol  contract  was  not  binding  as  a  lease  for  a  term  of 
years,  it  might  be  used  to  show  that  Harmonson  was  not 
on  the  premises  as  a  trespasser,  but  that  the  labor  was 
done  with  the  consent  and  at  the  request  of  the  defend- 
ant; and  he  having  rescinded  the  agreement  by  which 
the  plaintift*  was  induced  to  perform  the  labor,  left  na 
special  contract  in  existence  which  could  bar  the  plain- 
tiff's right  to  recover  the  value  of  the  improvements  in 
this  form  of  action. 

Per  Ciiriani. — The  judgment  is  affirmed,  with  6  per  cent. 
damages  and  costs. 

Gregg,  for  the  plaintifi'. 

Fletcher  and  Brown,  for  the  defendant. 


Kelsey  v.  Dickson,  in  Error. 

KELSEY  and  Dickson  being  partners  in  a  mill  which 
they  had  built,  entered  into  a  written  agreement  stating, 
inter  alia,  that  Dickson  had  bought  Kelsey's  interest  in 
the  mill  for  500  dollars,  to  be  paid  in  certain  installments. 
Kelsey,  in  an  action  against  Dickson  for  the  purchase- 
money,  was  permitted  to  show  by  parol  evidence,  that 
the  sum  of  500  dollars,  which  Dickson  was  to  pay  Kelsey 
for  his  interest  in  the  mill,  was  exclusive  of  the  expenses 
that  had  been  incurred  in  building  it;  and  that  those  ex- 
penses were  to  be  paid  by  Dickson. 

Dickson    had    given    to    Kelsey  a   receipt    as  follows: 

"Rec'd,  17th  Oct.  1821,  of  J.  Kelsey,  250  dollars, 
[*237]    which,  with  100  dollars,  ^formerly  rec'd  (as  per 

rec't  given  Mr.  K.),  I  am  to  lay  out  for  him  in 
Louisville,  in  such  goods  as  will  suit  the  Terre  ITante  mar- 
ket, charging  him  cost  and  carriage;  or  should  this  mode 

(277) 


237  SUPREME  COURT  OF  INDIANA. 

Evans  and  Others  r.  Shoemaker. 

of  settlement  not  be  desired,  I  am  to  pay  the  amount  in 
specie,  adding  a  premium  of  two  |;er  cent. — say  in  all  357 
dollars,  with  interest  from  the  date  until  paid. — Francis 
Dickson,  Jun."  In  an  action  by  Kelsey  against  Dickson, 
in  which  Kelse}''  claimed  the  whole. amount  named  in  this 
receipt,  it  was  held  that,  though  the  original  receipt  for 
100  dollars  was  not  produced  nor  its  absence  accounted 
for,  that  circumstance  was  not  of  itself  sufficient  to  ex- 
clude Kelsey  from  the  benefit  of  the  receipt  for  the  whole 
amount,  including  the  100  dollars  acknowledged  to  have 
been  previously  received. 


Evans  and  Others  v.  Shoemaker. 

Justice  op  Peace — Jurisdiction — Amount. — A  justice  of  the  peace,  under 
the  statute  of  1827,  has  jurisdiction  in  actions  of  debt  on  penal  bonds, 
conditioned  for  the  performance  of  covenants,  when  the  penalty  does  not 
exceed  100  dollars  (a). 

Same — Pleading. — No  statement  of  the  demand,  except  the  filing  of  the 
bond,  is  in  such  case  necessary ;  nor  need  there  be  any  suggestion  of 
breaches  (6). 

Pleading — Striking  out. — If  a  defence  be  filed,  which  is  not  relevant  to 
the  cause,  it  may  be  rejected  on  motion  (c). 

Official  Bond — Delivery-Bond— Form. — The  condition  of  a  delivery- 
bond  showed,  that  the  property  was  to  be  delivered  to  the  person  to  whom 
the  execution  was  directed,  but  it  did  not  state  his  name.  Held,  that  the 
omission  of  the  sheriff's  name  did  not  render  the  bond  void,  but  that  the 
ambiguity  thereby  occasioned  might  be  explained  by  extrinsic  evidence. 

ERROR  to  the  Owen  Circuit  Court. 

Blackford,  J. — This  case  had  originated  before  a  jus- 
tice of  the  peace.  The  transcript  of  the  justice's  judg- 
ment, with  the  bond  on  which  the  suit  was  founded,  was 
filed  in  the  clerk's  office  on  the  21st  of  December,  1827. 
Shoemaker  was  the  plaintiff,  and  Evans,  Harris,  and  John- 

(a)   Ante  216.     (6)  -1  BIkf.  174;  5  Id.  339;  6  Id.  91,  184;  16  Ind.  312. 
{c)  15  Ind.  280. 

.       .  (278) 


MAY  TERM,  1829.  237-238 

Evans  and  Others  r.  Shoemaker. 

son,  were  the  defendants.  It  was  an  action  of  debt  on  a 
penal  bond  in  the  sum  of  94  dollars,  payable  to  the  plain- 
tiff, and  dated  the  1st  of  November,  1827.  The  condition 
of  the  bond  was,  "  that  if  the  above  bound  Andrew  Evans 
does,  on  the  12th  instant,  deliver  to  me  in  the  town  of 
Spencer,  three  head  of  horses,  taken  by  virtue  of  an  ex- 
ecution to  me  directed  from  the  clerk  of  the  Owen  Cir- 
cuit Court  in  favor  of  Thomas  Shoemaker,  then," 
[*238]  &c.  *Previously  to  the  commencement  of  the 
trial,  the  defendants  tiled  the  following  defence, 
to  wit,  that  the  demand,  if  collected  from  them,  was  not 
coming  to  the  plaintiff,  but  to  certain  heirs;  that  one  of 
ihe  defendants  was  the  surety  of  the  guardian  of  those 
heirs ;  and  that  the  defendants  ought  not  to  be  compelled 
to  pay,  until  the  surety  was  discharged  as  such,  he  being 
doubtful  whether  his  principal  would  faithfully  discharge 
his  duties.  The  execution,  returned  witli  the  delivery - 
bond  on  which  this  suit  is  founded,  was  endorsed  as  fol- 
lows :  "  Came  to  hand,  14th  Sept.,  1827.— Robert  M.Wood 
en,  sheriff,  0.  C.  Levied  on  three  head  of  horses,  1 
property  of  Andrew  Evans.  Took  delivery-bond  wi;l; 
Daniel  Harris  and  Gabriel  Johnson  security  thereto,  and 
the  defendants  failed  to  deliver  the  property  on  the  day 
of  sale;  therefore  no  money  made  on  the  within  execu- 
tion, but  said  bond  is  returned  to  the  clerk's  office.  Nov. 
12th,  1827.— Robert  M.  Woodin,  sheriff,  0.  C."  The  jus- 
tice, after  hearing  the  evidence,  gave  judgment  in  favor 
of  the  plaintiff  for  53  dollars  and  54  cents,  together  with 
costs.     The  defendants  appealed  to  the  Circuit  Court. 

In  the  Circuit  Court,  a  motion  was  made  to  dismiss  the 
cause,  because,  1st,  there  had  been  no  statement  of  the 
cause  of  action  filed  before  the  justice;  and  2d,  the  jus- 
tice had  no  jurisdiction  of  the  cause.  This  motion  the 
Circuit  Court  overruled.  The  plaintiff"  moved  to  reject 
the  defence  filed  before  the  justice;  which  motion  the 
Court  sustained.  The  plaintiff  suggested,  on  the  record, 
the  following  breach  of  the  condition  of  the  bond,  to  wit, 

(279) 


238-239    SUPREME  COURT  OF  INDIAITA. 


Evans  and  Others  v.  Shoemaker. 


"that  the  said  Andrew  Evans  did  not,  nor  did  any  other 
person,  deliver  the  said  three  head  of  horses,  or  either  of 
them,  on  the  said  12th  of  I^ovember,  1827,  in  the  town 
of  Spencer  aforesaid,  in  manner  and  form  as  they  were 
bound  in  said  condition  to  do."  The  cause  was  submit- 
ted to  the  Circuit  Court  without  a  jury.  A  judo-nient 
was  rendered  in  favor  of  the  phaintiff  below  for  94  dol- 
lars, the  penalty  of  the  bond;  and  the  damages  were  as- 
sessed at  54  dollars  and  90  cents,  together  with  costs. 

The  first  error  assigned  is,  that  the  justice  had  no  juris- 
diction of  the  cause,  because  the  bond  on  which  the  suit 
was  founded  was  a  penal  one,  conditioned  for  the  deliv- 
ery of  property  taken  by   the  sheriff  on  execution.     In 
answer  to  this,  it  must  be  observed  that  the  statute 
[*239"1    of  1827  gives  the  justice  jurisdiction  in  *all  actions 
of  debt,  where  the  sum  due  or  demanded  does  not 
exceed  100  dollars,  exclusive  of  interest  and  costs.     The 
present  case,  certainly,  comes  within   the  terms  of  the 
statute  (1).     The  second  error  assigned  is,  that  no  state- 
ment of  the  cause  of  action  was  filed  before  the  justice. 
There  is  nothing  in  that.     The  statute  of  1827  requires  no 
statement  of  the  demand  in  such  a  case,  except  the  filing 
of  the  bond,   which  was  done.     The  third  assignment  or 
error  is,  that  the  Circuit  Court  should  not  have  rejected 
the  defence,  nor  have  permitted  the  suggestion  of  breaches. 
The  defence  was  properly  rejected.     That  one  of  the  de- 
fendants was  a  surety  of  the  guardian  of  certain  heirs  en- 
titled to  the  money  after  the  collection  of  it  by  the  plain- 
tiff, had  nothing  to  do  with  the  case.     The  suggestion  of 
the  breach  was  mere  surplusage,  in  a  case  originating 
before  a  justice.     Fo  assignment  of  breaches  was  neces- 
sary.    The  last  error  assigned  is,  that  the   bond  is  void. 
It  is  objected  under  this  head,   that  the  condition   of  the 
bond  does  not  state  to  whom  the  property  was  to  be  de- 
livered.    The  answer  to  this  is,  that  although  the  name  of 
the  sheriff  is  not  mentioned,  yet  as  delivery  was  to  be  to 
the  person  to  whom  the  execution    was  directed   by  the 

(280) 


MAY  TERM,  1829.  239-240 

Lefavoiir  and  Another  v.  Yandes  and  Another. 

clerk  of  the  Court,  the  omission  of  the  name  of  the  sherift', 
only  created  such  an  ambiguity  as  was  susceptible  of  ex- 
planation by  extrinsic  proof.  The  return  on  the  execution 
shows  that  the  bond  was  taken  by  Robert  M.  Wooden, 
the  sheriff  of  the  county.  There  may  have  been  other  ex- 
planatory testimony  ;  and  as  the  evidence  is  not  spread  on 
the  record,  we  must  presume  that  the  necessary  proof  was 
given.  There  appears  to  ns  therefore,  to  be  no  ground 
for  the  objections,  made  by  the  plaintiffs  in  error  to  the 
proceedings  in  this  cause.  The  judgment  must  be  affirmed. 

Per  Curiam. — The  judgment  is  affirmed,  with  5  ^;er  cent. 
damages  and  costs. 

Hester  and  Gregg,  for  the  plaintiffs. 

Whitcomb,  for  the  defendant. 

(1)    Vide  Washburn  v.  Payne,  ante,  p.  216,  and  note. 


[*240]  *Lefavour  and  Another  v.  Yandes  and  Another. 

Partnership — Declarations  of  Partner. — Assumpsit  by  partners  for 
work  and  labor.  Held,  that  evidence  of  the  statements  of  one  of  the  part- 
ners, made  after  the  dissohition  of  the  partnership,  so  far  as  tliey  tended 
to  show  a  new  contract  destroying  the  jiartnership  claim,  and  giving  to 
each  partner  a  separate  demand  for  liis  part  of  the  debt,  was  not  admis- 
sible ;  but  that  the  statements  of  such  partner,  so  far  as  they  showed  a 
payment  made  to  himself,  might  be  proved  (a). 

APPEAL  from  the  Marion  Circuit  Court. — Assumpsit. 
Plea,  the  general  issue.  Verdict  and  judgment  for  the 
defendants. 

Scott,  J. — An  action  was  brought  in  the  name  of 
Lefavour  and  Shryock  against  Yandes  and  Wilson,  for 
work  and  labor  in  erecting  a  mill.  The  defendants  intro- 
duced evidence  to  prove  that  Shryock,  one  of  the  plaintiff's, 
disclaimed  the  action,  and  acknowledged  that  he  had  re- 
ceived  satisfaction  in  full  for  his  part  of  tlie  labor,  and  that 
an  agreement  had  been  made,  by  and  between  the  plain- 

(a)  Post  371 ;  3  Blkf.  433  ;  2  Ind.  322 ;  6  Id.  304 ;  12  Id.  223. 

(281) 


240-241   SUPREME  COURT  OF  INDIANA. 

Lefavour  and  Another  v.  Yandes  and  Another. 

tift's  and  the  defendants,  subsequently  to  the  completion  of 
the  work,  that  the  defendants  were  to  pay  each  of  the 
partners  his  part  severally.  On  this  evidence  the  Court 
instrnctedthe  jury,  "that  if  there  was  an  acknowledgment 
by  one  of  the  partners,  after  the  dissolution  of  the  part- 
nership, that  an  agreement  was  made  by  the  parties,  sub- 
sequently to  the  completion  of  the  work,  that  the  defend- 
ants were  to  arrange,  satisfy,  and  pay  each  of  the  plaintiffs, 
as  they  could  agree  with  each  of  them  severally  ;  and  that 
they  did  accordingly  pay  one  of  the  partners  in  full  for 
his  part;  the  other  partner  must  bring  a  separate  suit  for 
his  part."  To  this  instruction  the  plaintiffs  excepted,  and 
their  bill  of  exceptions  is  spread  on  the  record. 

Had  the  defendants  proved  such  an  agreement  by  a 
disinterested  witness,  or  other  legal  proof,  they  might  have 
defeated  an  action  in  the  partnership  name ;  but  the 
objection  here  is  to  the  kind  of  proof  which  is  intro- 
duced to  establish  the  agreement.  Had  Lefavour  brought 
his  action  separatel}'  for  his  part  of  the  claim,  proof  of 
Shryock's  acknowledgment  would  have  been  insufticient 
to  show  the  separation  of  interests  ;  and  the  reason  is 
equally  strong,  that  it  should  have  been  received  to  defeat 
an  action  in  the  partnership  name.  On  this  ground, 
["^241]  *we  think  the  judgment  for  the  defendants  in  the 
Circuit  Court  is  erroneous.  Several  other  excep- 
tions were  taken  in  the  course  of  the  trial  below,  which 
need  not  now  be  noticed.  From  a  view  of  the  whole  case, 
we  are  of  opinion  that  the  action  in  the  name  of  the 
partners  should  be  sustained.  Shryock's  admissions  are 
admissible  to  prove  the  paj'ment  made  to  himself  but  not 
to  change  the  contract  (1). 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

Brow7i,  for  the  appellants. 

Fletcher  and  Gregg,  for  the  appellees. 

(1)  The  declarations  of  one  partner,  as  to  the  payment  subsequently  to  a 
dissolution  of  a  debt  due  to  the  partnership,  are  admissible  against  the 
other  partner.     Kussell  &  Mylne,  191,  per  Brougham,  Chancellor. 

(282) 


MAY  TERM,  1829.  241-242 

Wilson  r.  Harding. 


Wilson  r.  Harding. 

E^^DENCE— Hearsay.— Neither  hearsay  nor  irrelevant  testimony  is  admis- 
sible. ,  .  , 

Slander- Perjury.— A  declaration  in  slander  charged  the  detendant  with 
having  said,  that  the  plaintiff  had  sworn  false  on  a  certain  trial  before  a 
justice' of  the  peace;  but  there  was  no  averment  that  the  testimony  al- 
leged to  be  false,  was  material.  Held,  that  the  declaration  could  not  be 
objected  to,  after  verdict,  for  the  want  of  that  averment  (a). 

ERROR  to  the  Marion  Circuit  Court.— Slander  for 
words  chargins:  the  plaintiff  with  having  sworn  false,  on 
a  certain  trial,  before  a  justice  of  the  peace.     Plea,  not 

guilty. 

Scott,  J.— An  action  of  slander  was  brought  in  the 
Marion  Circuit  Court,  by  Harding  against  Wilson  for 
words  importing  a  charge  of  perjury  on  a  trial  before  a 
justice  of  the  peace.  There  was  a  verdict  and  judgment 
for  the  plaintiff  in  the  Circuit  Court;  and  to  reverse  that 
judgment  is  the  object  of  this  writ  of  error. 

One  error  assigned  is  that  Wilson,  the  defendant  be- 
low, asked  Sharpe,  one  of  the  witnesses,  what  one  Wright 
had  said  on  the  subject  of  Harding's  te.stimony  before  the 
justice.     To  which  question  Harding  objected;  and  the 
Court  sustained  the  objection.     Another  error  assigned 
is,  that  the  Circuit  Court  admitted,  as  evidence,  a  tran- 
script of  the  proceedings  before  justice  Bradley,  in 
[*242]    the  case  to  which  reference  was  had  in  the  ^charge 
of  perjury.     A  third   error  .assigned  is,  that  the 
defendant  below  offered  to  prove  certain  admissions,  and 
subsequent  denials,  made  by  the  plaintiff' in  a  conversation 
with  himself.    We  think  there  is  nothing  in  these  objec- 
tions.    Had  the  question,  stated  in  the  first  assignment 
to  have  been  asked  by  the  defendant,  been  answered  by 
the  witness,  it  would  have  been  hearsay  evidence.     It  was 
therefore  properly  rejected.    We  can  discover  no  ground 
to  support  the  second  objection.     And  the  third  refers  to 

(a)  52  Ind.  442 ;  13  Id.  535  ;  50  Id.  129. 
•      (283) 


242-243    SUPREME  COURT  OF  INDIANA. 

Youse  V.  M'Creary. 

testimony  which  was  irrelevant,  and  therefore  inadmis- 
sible. All  the  other  errors  assigned  converge  to  one 
point.  It  is  alleged  that  tlie  words  are  not  actionable, 
because  it  is  not  stated  in  the  declaration  that  the  testi- 
mony given  by  Harding  on  the  trial  alluded  to,  was  ma- 
terial to  the  point  in  issue.  This  position,  we  think,  is 
not  supported  b}'  either  principle  or  precedent.  Where 
there  has  been  a  trial  before  a  competent  tribunal,  it  will 
be  presumed  that  the  testimony  given  on  that  trial  was 
material.  To  charge  a  man  with  perjury,  in  reference  to 
a  trial  where  perjury  might  be  committed,  is  actionable; 
as  to  say,  you  were  foresworn  at  such  a  trial;  or,  as  ia 
this  case,  to  say  of  another,  that  he  is  foresworn  before  a 
justice  of  the  peace,  has  been  held  to  be  actionable. 
Stark,  on  SI.  78;  3  Lev.  166.  Slanderous  words  should 
be  taken,  in  Courts  of  justice,  in  the  sense  in  which  they 
are  commonly  understood.  Every  slander  imports  an  in- 
jury; and  the  injury  arises  from  the  words  in  their  com- 
mon acceptation.  The  words,  in  this  case,  without  ex- 
planation or  qualification,  have  a  slanderous  import;  the 
jury  have  so  understood  them;  and  it  is  not  the  duty  of 
the  Court  to  search  for  possible  cases,  in  which  they 
might  have  been  spoken  in  a  sense  more  innocent  than 
that  which  has  been  ascribed  to  them.  The  judgment  of 
the  Circuit  Court  must  be  affirmed. 

Per  Curiam. — The  judgment  is  aflirmed,  with  1  per  cent, 
damages  and  costs. 

Broion  and  3Icrrill,  for  the  plaintiff". 

Wick,  Fletcher,  and  Gregg,  for  the  defendant. 


[*243]  Youse  v.  M'Creary. 

Mortgage — Default — Remedy. — If  a  pertion,  holding  a  bond  for  the  pay- 
ment of  money  secured  by  a  mortgage  .on  real  estate,  ])roceod  first  upon 
the  mortgage,  he  is  precluded  bv  the  statute  of  1824  from  anv  other  rem- 

(284) 


MAY  TERM,  1829.  243 


Youse  V.  M'Creary. 


edy.  But  he  may  proceed  first  upon  the  bond  to  judgment,  sell  I  he  mort- 
gaged property  on  execution,  and  hold  the  obligor  liable  for  any  balance 
that  may  remain  due :  in  this  case,  the  obligee  waives  his  claim  under 
the  mortgage,  and  the  purchaser  at  sheriff's  sale  holds  the  land  freed 
from  the  mortgage  (a). 

]SroTE— Insolvent  Maker— Remedy  of  Assignee.— If  the  maker  of  a  note 
be  notoriously  insolvent,  the  assignee  may  sue  the  assignor  without  hav- 
ing previously  sued  the  maker  (6). 

Same— Same— Damage.— If  the  assignee  of  a  note  can  not  collect  the 
money  from  the  maker,  he  may  recover  from  tlie  assignor  the  amount 
paid  for  the  assignment,  together  with  interest  and  the  costs  of  the  suit 
against  the  maker.  The  amount  of  the  note  is  prima  facie  evidence  of  the 
price  received  by  the  assignor ;  but  he  is  at  liberty  to  prove  the  real  con- 
sideration (c). 

ERROR  to  the  Union  Circuit  Court. 

Blackford,  J.— This  was  an  action  of  assumpsit  by 
M'Creary,  the  assignee  of  a  sealed  note,  against  Youse, 
the  assignor.  The  declaration  states  that  the  note  was 
made  on  the  25th  December,  1824,  by  Chesney  to  Kelly, 
for  6Q  dollars  and  66  cents,  and  assigned  by  the  payee  to 
Youse,  who  assigned  it  to  M'Creary.  It  is  also  averred, 
that,  at  the  time  the  note  became  due,  the  maker  was  in- 
solvent, and  has  so  continued  ever  since.  The  defendant 
pleaded  the  general  issue.  The  following  is  the  agreed 
case  : 

"The  parties  in  the  above  entitled  cause  agree  that  the 
following  are  the  true  facts  upon  which  this  cause  is 
founded,  to  wit,  the  writing  obligatory  upon  the  assign- 
ment of  which  this  suit  is  founded— together  with  two 
other  notes,  each  of  the  same  amount,  one  of  which  has 
since  been  paid  by  the  maker,  and  the  other  of  which  has 
been  prosecuted  against  him,  and  a  part  of  the  amount 
made  by  a  sale  of  his  property,  and  a  judgment  rendered 
for  the  bahance  against  the  defendant  in  this  cause — was 
executed  by  Chesney,  at  the  time  stated  in  the  declara- 
tion, to  the  payee,  in  consideration  of  a  house  and  lot  in 
Brownsville.     Chesney  at  the  same  time  executed  to  the 

(a)   Post  268.     {b)  4  Tnd.  31S  ;  9  Id.  522  ;  11  7c/.  245.     (c)  37  lod.  107, 

(285) 


243-244    SUPREME  COURT  OF  INDIANA. 

Youse  V.  M'Creary. 

payee  of  the  notes  a  mortgage  on  the  same  house  and  lot, 
and  duly  acknowledged  the  same,  for  the  amount  of  the 

notes,  as  a  collateral  security  for  their  payment; 
['■'244]    and  the  ^mortgage  was  recorded  in  proper  time. 

Two  of  the  notes,  one  of  which  Is  the  foundation 
of  this  suit,  were  assigned  to  the  defendant,  as  stated  in 
the  declaration,  by  the  payee  thereof;  and,  at  the  same 
time,  the  mortgage  was,  by  the  mortgagee,  assigned  to  the 
defendant  as  a  collateral  security  for  the  payment  of  these 
two  notes.  The  defendant,  Youse,  assigned  the  said  two 
notes  to  the  plaintifi*  by  a  general  assignment;  and,  at  the- 
same  time,  assigned  the  mortgage  to  him  as  a  collateral 
security;  in  consideration  of  a  wagon,  worth  about  65 
dollars,  sold  and  delivered  by  the  plaintiff  to  the  defend- 
ant. At  the  time  the  note  specified  in  the  declaration  be- 
came due,  Chesney,  the  maker,  had  not,  nor  has  he  yet, 
any  property  whatever,  and  was  and  is  totally  insolvent, 
except  as  to  the  said  house  and  lot  mortgaged  as  afore- 
said ;  which  house  and  lot,  it  is  agreed,  had,  previously 
to  the  time  the  said  note,  upon  the  assignment  of  which 
this  suit  is  founded,  became  due,  been  levied  upon,  taken 
in  execution,  and  sold,  by  the  said  plaintiff,  on  a  judgment 
obtained  by  him,  in  the  Union  Circuit  Court,  on  one  of 
the  notes  mentioned  in  the  mortgage;  and  the  same  only 
sold  for  the  sura  of  20  dollars  and  25  cents,  10  dollars  and 
25  cents  of  which  were  applied  to  the  costs  of  the  suit, 
and  the  balance  applied  to  that  judgment,  the  residue  of 
which  judgment  still  remains  unpaid.  The  plaintiff  has 
not  proceeded  on  the  mortgage,  but  still  holds  the  same, 
not  discharged,  unless  the  sale  of  the  mortgaged  prem- 
ises by  his  order,  on  the  judgment  aforesaid,  should  be 
considered  a  discharge.  The.  plaintiff  has  a  judgment 
unsatisfied  against  the  defendant,  Youse,  in  the  Union 
Circuit  Court,  for  50  dollars  and  6  cents,  the  balance  due 
on  one  of  the  notes  assigned  as  a  consideration  for  said 
wagon,  and  has  received  satisfaction  of  Chesney,  the 
maker,  for  the  sum  of  7  dollars  and   50  cents  of  the 

(286) 


MAY  TERM,  1829.  244-245 

Yonse  V.  M'Creary. 

amount  of  said  note  on  which  said  judgment  was  ren- 
dered, by  the  sale  of  the  mortgaged  premises, 

"  The  defendant  contends,  that  if  the  plaintiff  is  en- 
titled to  recover,  the  measure  of  damages  in  this  case 
should  be  the  consideration  given  for  the  assignment  of 
the  notes,  with  interest,  ro  wit,  65  dollars,  deducting  the 
sum  of  57  dollars  and  6  cents,  a  part  of  which  was  here- 
tofore made,  and  for  the  balance  of  which  judgment  has  al- 
ready been  rendered  on  the  other  note.  The  plaintiff"  con- 
tends, that  he  is  entitled  to  recover  the  face  of  the 
[*245]  note,  Avith  interest,  regardless  of  the  value  -'^given 
for  the  assignment,  as  the  assignment  is  general, 
and  no  special  contract  relative  to  the  matter. 

"Now  if  the  plaintiff"  is  entitled  to  recover,  under  this 
statement  of  facts,  then  the  Court  will  render  judgment 
for  him,  and  assess  his  damages.  But  if  the  Court  should 
be  of  a  diff"erent  opinion,  then  a  judgment  is  to  be  ren- 
dered for  the  defendant. 

"  0.  H.  Smith,  for  the  piff". 
"  Rariden,  for  the  deft." 

The  Circuit  Court  gave  judgment  in  favor  of  the  plain- 
tiff", for  the  amount  of  the  note  specified  in  the  declara- 
tion with  interest,  to  wit,  for  68  dollars  and  90  cents; 
together  with  costs. 

The  first  question  in  this  cause  is,  whether  the  plain- 
tiff" can  recover,  under  tlie  circumstances  of  this  case? 
It  is  contended  that,  as  the  asignment  of  a  mortgage  ac- 
companied that  of  the  bond,  the  plaintiff*  was  obliged,  by 
the  statute  of  1824,  to  rely  upon  the  mortgaged  premises 
alone  for  the  payment  of  the  debt.  We  think,  however, 
that  he  was  not.  To  be  sure,  if  the  holder  of  a  bond  and 
mortgage  elects  to  proceed  first  upon  the  mortgage,  he  is 
precluded,  by  the  express  terms  of  the  statute,  from  any 
other  remed}'  (1).  But  there  is  nothing  in  the  statute,  in 
our  opinion,  to  prevent  such  a  holder  from  proceeding 
first  upon  his  bond,  selling  the  mortgaged  premises  on 
execution,  and  thus   electing  to  abandon  the   mortgage. 

(287) 


245-246    SUPREME  COURT  OF  INDIANA. 

Youse  V.  M'Creary. 

In  this  case  M'Creary,  in  selling  the  house  and  lot  on  his 
execution,  waived  any  claim  he  might  have  had  under  the 
mortgage;  and  the  purchaser  at  sherifi''s  sale  received  the 
property  freed  from  the  mortgage.  The  consequence  is, 
that,  according  to  the  facts  agreed  on,  the  complete  in- 
solvency of  Chesny  was  established,  as  alleged  in  the  dec- 
laration. In  cases  of  that  kind,  to  wit,  of  the  maker's 
notorious  insolvency,  a  suit  against  him,  in  our  opinion, 
is  not  necessary  in  order  to  bind  the  endorser.  The 
plaintiff,  therefore,  in  this  case,  had  a  right  to  recover. 

The  next  question  for  our  consideration  is,  what  is  the 
measure  of  damages  in  an  action,  like  the  present,  on  the 
assignment  of  an  obligation  ?  It  appears  to  us,  that 
where  the  money  can  not  be  obtained  from  the  maker  of 
the  note,  the  consideration  which  moved  from  the  assignor 

for  whatever  he  receives  for  the  note,  thereby  fails  ; 
[*246]    and  he  should  then  be  liable  for  the  *value  which 

he  had  received  from  the  asignee  for  that  consid- 
eration, with  interest,  and  the  costs  of  the  suit  against  the 
maker.  See  1  Bibb,  545.  The  amount  of  the  note  is 
lyrima  facie  evidence  that  that  was  the  price  paid  for  the 
assignment ;  but  this  ought  not,  we  think,  to  prevent  the 
assignor  from  showing  that  the  real  value  he  received  was 
less  than  the  face  of  the  note.  The  intention  of  our  stat- 
ute, making  the  obligations  assignable,  will  be  best  an- 
swered, as  we  conceive,  by  this  construction.  In  the  pres- 
ent case,  the  defendant  received  from  the  plaintiff  a 
wagon,  worth  a  certain  sum,  on  a  consideration  which  has 
failed  in  consequence  of  Chesny's  insolvency;  and  the  de- 
fendant would  be  bound  to  return  tlie  value  of  the  wagon, 
with  interest,  had  the  plaintiff  received  nothing  from  the 
maker  in  the  suit  on  the  other  note;  and  had  he  not  a 
judgment  already  against  the  defendant  himself,  on  the  as- 
signment of  that  note.  These  circumstances,  however, 
must  affect  the  amount  of  the  judgment  to  be  recovered 
111  the  present  case.  Tlie  correct  rule  for  the  assignment, 
of  the  damages,  which  the  plaintiff,  M'Creary,  may  be  en- 

(288) 


MAY  TERM,  1829.  246-247 


Isaylor  v.  Moody  and  Another,  Executors. 


titled  to  recover,  if  any,  we  consider  to  be  this  :  From 
the  agreed  value  of  the  wagon,  with  the  interest,  must  be 
deducted  the  amount  received  by  the  plaintiff  on  his  judg- 
ment against  Chesny  on  the  other  note,  and  also  the 
amount  of  the  plaintiff's  judgment  obtained  against  the 
defendant  on  the  assignment  of  that  note,  exclusive  of 
costs.  We  think  that  the  rule  adopted  by  the  Circuit 
Court,  in  this  case,  in  assessing  the  damages,  to  wit,  that 
the  face  of  the  note  must  regulate  the  amount,  is  not  in 
accordance  with  the  spirit  of  our  statute  making  these 
obligations  assignable. 

The  judgment  must  be  reversed,  and  the  cause  remand- 
ed for  a  new  assessment  of  damages. 

Per  Curiam.— The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Eariden,  for  the  plaintiff. 

Smith,  for  the  defendant. 

(1)  The  statute  of  1824,  referred  to  in  the  text,  is  repealed.  Vide  Stat. 
1830,  p.  50 ;  K  C.  1831,  p.  244. 


[*247]  ^Naylor  V.  Moody  and  Another,  Executors, 

Foreign  Administration — Practice. — Letters  testamentary  or  of  admin- 
istrat'^on,  granted  in  another  state,  will  not  authorize  the  executor  or 
administrator  to  commence  a  suit  in  this  state,  unless  the  letters  be  pre- 
viously recorded  in  the  Circuit  Court  of  the  county  in  which  the  suit  is 
commenced  (a). 

ERROR  to  the  Clark  Circuit  Court. 

Scott,  J. — Richard  Moody  and  Polly  Moody,  claiming 
to  be  executor  and  executrix  of  the  last  will  and  testa- 
ment of  John  Moody,  deceased,  filed  in  the  office  of  the 
clerk  of  the  Court  of  Probate  of  Clark  county,  certain 
papers  purporting  to  be  letters  testamentary,  granted  to 

(a)  35  Ind.  332;  See  17  Id.  41. 

Vol.  II.— 19    '  (289) 


247-248   SUPEEME  COURT  OF  INDIANA. 

Naylor  v.  Moody  and  Another,  Executors. 

them  by  the  county  Court  of  Henry  county,  in  the  state 
of  Kentucky,  accompanied  with  the  last  will  and  testa- 
ment of  the  said  John  Moody,  deceased ;  and,  on  the  same 
day,  sued  out  a  scire  facias  to  revive  a  judgment  of  the 
Clark  Circuit  Court,  in  favor  of  the  said  John  Moody,  de- 
ceased, against  William  H.  Moore,  and  to  have  execution 
thereon  against  the  said  William  H.  Moore  and  Isaac  Nay- 
lor, his  replevin-surety.  This  scire  facias  was  returned 
served  upon  Naylor,  and  not  found  as  to  Moore.  Naylor 
appeared  and  filed  three  pleas;  one  of  which  was  that  the 
letters  testamentary,  in  the  said  writ  mentioned,  had  never 
been  entered  of  record  in  any  Circuit  Court  within  this 
state.  To  this  plea  the  plaintiff's  replied,  that  the  said 
letters  were  entered  of  record  as  required  by  law.  The 
matters  in  issue  were  submitted  to  the  Court;  and  there 
was  judgment  for  the  plaintiffs,  and  execution  awarded. 
Our  statute  of  January  the  26th,  1824,  sec.  28,  provides 
that  letters  testamentary  and  letters  of  administration, 
Obtained  in  a  sister  state,  shall  have  full  force  and  effect 
within  this  state,  and  that  the  executors  and  administra- 
tors mentioned  therein  may  sustain  suits  thereon,  and  do 
all  other  acts  thereby  authorized,  upon  having  the  same 
entered  of  record  in  any  Circuit  Court  in  this  state.  The 
letters  testamentary,  in  this  case,  were  filed  in  the  clerk's 
office  in  vacation.  It  is  not  alleged  that  they  were  re- 
corded; but  it  is  contended  that  the  requisition  of  the 
•statute  is  answered  by  the  filing  of  the  papers  in  the 

clerk's  office.  We  think  the  statute  requires 
[*248]    something  *more.     Filing  and  entering  of  record 

are  not  synonymous :  they  are  no  where  so  used. 
These  phrases  frequently  occur  in  our  statutes ;  and  they 
always  convey  distinct  ideas.  Filing,  originally-,  signified 
placing  papers  in  order  on  a  thread  or  wire,  for  safe  keep- 
ing. In  this  country,  and  at  this  day,  it  means,  agreeably 
to  our  practice,  depositing  them  in  due  order  in  the  proper 
office.  Entering  of  record  uniformly  means  writing.  It 
appears  clearly,  by  the  manner  in  which  the  words  are 

(290) 


MAY  TERM,  1829.  248-249 


The  State  v.  Eackley. 


used  ill  our  statutes,  that  the  legislature  has  recognized 
this  distiuction.  If  this  view  of  the  case  be  correct,  the 
plaintifts  below,  at  the  time  they  sued  out  the  scire  facias, 
had  not  taken  the  steps  necessary  to  authorize  them  to 
sustain  a  suit  in  their  representative  capacity.  They 
should,  instead  of  filing  their  papers  in  the  probate  office, 
have  had  them  recorded  with  the  proceedings  of  the  Cir- 
cuit Court,  subject  to  the  inspection  and  control  of  that 
Court,  in  case  of  any  alleged  defect  or  insufficiency. 
Whether  the  plaintiffs  had,  or  had  not,  entitled  themselves 
to  sue  as  executors  was  a  point  directly  before  the  Court 
on  the  issue;  and  the  judgment  should  have  been  for  the 
defendant  (1). 
,Per  Curiam. — The  judgment  is  reversed  with  costs. 

Dewey  and  Naylor,  for  the  plaintiff. 
Farnham,  for  the  defendants. 

(1)  If  a  foreign  executor  wish  to  recover  by  suit,  in  England,  a  debt  due 
to  his  testator,  a  personal  representative  must  be  constituted,  by  the  spirit- 
ual Court  in  England,  to  administer  ad  litem.  Attorney  General  v.  Cockerell, 
1  Price,  179. 

An  executor  or  administrator  can  not,  by  virtue  of  letters  testamentary 
or  of  administration  granted  in  one  state  maintain  an  action  in  any  other 
state.  Fenivick  v.  Sear's  Adm'rs,  1  Cranch.  259 ;  Dixon's  Ex'rs  v.  Ramsay's 
Ex'rs.  3  id.  319  ;  Morrell  v.  Dickey,  1  Johns.  Ch.  R.  153. 

"Letters  testamentary,  of  administration,  or  of  guardianship,  granted  in 
any  of  the  states  or  territories  of  the  United  States  or  in  any  foreign  coun- 
try, shall  authorize  the  executor  or  administrator  thereby  appointed,  to 
sustain  actions  and  suits,  and  to  do  all  acts  coming  within  their  pow- 
ers as  such,  within  this  state,  upon  the  same  or  copies  thereof  duly  and 
legally  authenticated,  being  produced  and  filed  with  the  clerk  of  the  Court 
in" which  such  suits  or  actions  are  to  be  maintained,  or  within  the  jurisdic- 
tion whereof  such  acts  are  to  be  done.  And  such  guardians,  after  having 
filed  a  copy  of  their  appointment,  and  given  bond  and  security  under  the 
provisions  of  this  act,  shall  have  all  the  privileges  of  resident  guardians. 
R.  C.  1831,  p.  170. 


[*249]  *The  State  v.  Eackley. 

Judgment— Costs.— If  the  jury  find  a  defendant  in  an  indictment  guilty 
and  assess  the  fine,  but  acquit  him  as  to  costs,  no  judgment  for  costs  can 
be  rendered  against  him. 

Statutes— Construction.— Statutes  enacted  at  the  same  session  of  the  leg- 

(291) 


249  SUPREME  COURT  OF  INDIANA. 


The  State  v.  Kackley. 


islature  are  to  be  taken  in  pari  materia,  and  should  receive  a  construction 
■which  will  give  effect  to  each  if  possible.  But  if  each  of  them  can  not 
have  the  same  entire  effect  when  taken  in  connection  with  the  others,  that 
it  would  have  if  taken  singly,  they  must  be  so  construed  as  to  give  effect 
to  what  appears  to  have  been  the  main  intention  of  the  legislature  (a). 

ERROR  to  the  Decatur  Circuit  Court. 

HoLMAN,  J. — Rackley  was  indicted  for  retailing  spirit- 
uous liquors  without  license.  The  jury  found  him  guilty 
and  assessed  his  fine  at  three  dollars  and  sixty-six  cents, 
and  acquitted  him  of  costs.  The  prosecuting  attorney 
moved  the  Circuit  Court  for  a  judgment  for  costs  non 
obstante  veredicto;  which  motion  being  overruled,  and 
judgment  given  on  the  verdict  for  the  fine  only,  he  filed 
a  bill  of  exceptions,  and  has  brought  the  subject  before 
tliis  Court  on  a  writ  of  error. 

The  72nd  section  of  the  act  respecting  crimes  and  pun- 
ishments, approved  January  the  20th,  1824,  is  in  these 
words:  "Costs  of  suit  shall,  in  all  cases  of  conviction, 
be  included  in  the  judgment,  where  the  jury  do  not  find 
otherwise."  R.  C.  1824,  p.  150  (1).  It  is  not  contended 
hut  that  this  provision,  taken  by  itself,  confers  on  the 
jury  a  right,  in  cases  of  conviction,  to  acquit  the  defend- 
ant of  costs.  But  it  is  urged  that  this  power  in  the  jury 
is  virtually  taken  away  by  the  act  regulating  the  fees  of 
ofiicers,  which  was  passed  at  the  same  session  of  the  leg- 
islature, and  approved  the  30th  of  January,  1824.  By 
which  statute  it  is  enacted,  that  the  ofiicers  therein  men- 
tioned shall  be  entitled  to  receive  for  their  services  the 
fees,  thereby  allowed.  Then  follows  a  list  of  services  and 
fees,  including  the  fees  of  clerks,  sherifife,  &c.,  in  criminal 
cases,  in  which  it  is  stated  that  the  prosecuting  attorney's 
fee  for  every  conviction  upon  indictment  or  presentment 
shall  be  five  dollars.  The  fees  in  criminal  cases  allowed 
by  this  act,  are  the  costs  for  which  judgments  are  usually 
given,  and  what  the  act,  in  ordinary  acceptation,  pre- 
supposes that  the  person   convicted  shall   pay.     This  is 

(a)  6  Ind.  354. 

(292) 


MAY  TEKM,  1829.  249-250 

The  State  v.  Rackley. 

the  plain  meaning  of  the  act.  But  this  meaning 
[*250]    is  not  ^''expressed   in  such    positive  terms,  as  to 

authorize  this  Court  in  saying  that  the  act  would 
admit  of  no  other,  if  we  should  thereby  render  ineffective 
a  previous  enactment  of  the  same  legislature.  This  act 
gives  the  officers  a  right  to  the  enumerated  fees,  but  does 
not  say  in  express  words  that  they  shall  be  paid  by  the 
defendant  in  all  cases  of  conviction ;  and  the  legislature 
having  previously  authorized  the  jury  to  acquit  the  de- 
fendant of  costs,  we  can  not  say  that  the  two  acts  are  so 
contradictory  that  they  can  not  stand  together ;  although 
by  this  construction,  we  lind  the  officers  of  the  Court  en- 
titled to  certain  fees  in  criminal  cases,  without  any  legal 
method  of  obtaining  them,  whenever  the  jury  think 
proper  to  discharge  the  defendant  from  the  payment  of 
costs. 

There  is  another  act  on  the  subject  of  the  fees  of  the 
prosecuting  attorney,  which  was  also  approved  on  the 
30th  of  January,  1824;  which  provides  that,  in  all  judg- 
ments in  criminal  prosecutions  against  any  defendant  or 
defendants,  the  sum  of  five  dollars  shall  be  taxed  in  the 
bill  of  costs,  in  favor  of  the  prosecuting  attorney.  R.  C. 
1824,  p.  128.  This  act  seems  to  be  more  repugnant  to 
the  dispensing  power  of  the  jury,  with  respect  to  costs, 
than  the  act  regulating  fees ;  yet  if  this  act  is  not  alto- 
gether inconsistent  with  that,  we  should  give  it  that  con- 
struction which,  in  our  opinion,  will  give  effect  to  what 
might  have  been  the  intention  of  the  legislature  in  their 
several  enactments  (2).  These  acts,  being  passed  at  the 
same  session  of  the  legislature,  are  to  be  taken  in  pari 
materia,  and  to  receive  a  construction  that  will  give  effect 
to  each  if  possible;  but  as  each  can  not  have  the  same 
entire  effect,  when  taken  in  connection  with  the  others,  as 
it  would  have  if  taken  singly,  we  must  so  construe  them  as 
to  carry  into  effect  what  appears  to  have  been  the  main 
intention  of  the  legislature.  That  intention  we  conceive 
to  be  this: — In  criminal  cases  the  several  officers,  includ- 

(293) 


250-251     SUPREME  COURT  OF  I^^DIANA. 

The  State  v.  Albertson. 

ing  the  prosecuting  attorney,  shall  be  allowed  certain 
fees,  which  as  a  general  rule,  shall  be  taxed  in  the  bill  of 
costs  against  the  person  convicted,  and  for  which  a  judg- 
ment shall  be  given  ;  provided,  nevertheless,  that  the  jury 
shall  have  a  right  to  discharge  a  person  convicted  from 
the  payment  of  costs.  We  conceive  that,  by  this  con- 
struction, there  is  less  violence  done  to  the  intention  of 
the  legislature,  than  there  would  be  in  supposing 
[*251]  that  they,  by  one  act,  intended  to  defeat  ^another 
that  had  been  enacted  at  the  same  session.  Un- 
der this  construction,  if  the  jury  exercise  their  dispensing 
power,  and  acquit  the  defendant  of  costs,  there  will  be  no 
bill  of  costs  in  which  the  prosecuting  attorney's  fee  can 
be  taxed;  and  of  course  it  will  be  left,  with  the  other 
fees,  without  any  provision  for  its  payment.  The  Circuit 
Court  acted  correctly  in  refusing  to  give  judgment  for 
costs. 

Per  Curiam. — The  judgment  is  affirmed. 

Whitcomb,  for  the  state. 

Wick,  for  the  defendant. 

(1)  Ace.  R.  C.  1831,  p.  195. 

(2)  Where  two  acts  are  repugnant,  that  which  received  the  royal  aseent 
last  must  prevail.     Rex  v.  Inhabitants  of  Middlesex,  Dowl.  P.  K.  116. 


The  State  v.  Albertson. 

Gaming — Criminal  Practice. — The  winning  of  any  sum  of  money  how- 
ever small,  at  a  game  witli  cards,  is  an  indictable  oflfence  of  which  the 
Circuit  Court  has  exclusive  jurisdiction. 

Justice  of  Peace— Criminal  Jurisdiction. — Offences  punishable  by  a 
fine  not  exceeding  three  dollars,  belong  exclusively  to  the  jurisdiction  of 
justices  of  the  peace.  Other  offences,  punishable  by  a  fine  which  may  be 
more  or  less  than  three  dollars  according  to  circumstances,  are  cognizable 
only  by  the  Circuit  Court. 

ERROR  to  the  Marion  Circuit  Court. 

(294) 


MAY  TERM,  1829.  251-252 

The  State  v.  Albertson. 

HoLMAN,  J. — Indictment  for  winning  thirty-seven  and 
a  half  cents  at  a  certain  game  with  cards.  Indictment 
quashed  on  motion  by  the  Circuit  Court.  Writ  of  error 
by  the  state. 

The  only  question  in  the  case  is,  whether  the  offence  is 
indictable  in  the  Circuit  Court,  or  falls  exclusively  within 
the  jurisdiction  of  a  justice  of  the  peace. 

The  74th  sec.  of  the  act  respecting  crimes  and  punish- 
ments states,  that  "  in  all  offences  in  this  act  contained,  to 
which  the  affixed  penalty  does  not  exceed  three  dollars, 
exclusive  jurisdiction  is  given  to  justices  of  the  peace  of 
the  proper  county."  R".  C.  1824,  p.  150  (1).  This  act 
contains  a  number  of  offences  that  are  punishable  by  a 
ffne  not  exceeding  three  dollars.  All  these  belong  ex- 
clusively to  the  jurisdiction  of  a  justice  of  the  peace. 
The  act  specifies  many  other  offences  punishable 
[*252]  *by  fine,  which  may  be  more  or  less  than  three 
dollars,  according  to  the  circumstances  of  the  case. 
These  do  not  come  within  the  foregoing  provision  of  the 
act.  The  terms  of  the  act  refer  to  offences  by  their  ap- 
propriate names,  and  not  to  the  degree  of  criminality  in 
the  commission  of  an  offence.  li'  the  highest  penalty  for 
the  commission  of  the  offence,  by  its  statutory  name,  does 
not  exceed  three  dollars,  the  jurisdiction  thereof  belongs 
exclusively  to  a  justice  of  the  peace;  but  if  a  commission 
of  the  offence  may  be  punished  by  a  higher  fine  than 
three  dollars,  it  does  not  come  within  the  aforesaid  pro- 
vision, but  belongs  exclusively  to  the  general  jurisdiction 
of  the  Circuit  Court. 

This  assignment  of  jurisdiction  is  of  offences  in  gen- 
eral terms,  and  does  not  depend  upon  the  particular  cir- 
cumstances which  may  attend  the  commission  of  an  of- 
fence. And  we  conceive  that  this  should  be  the  rule  by 
which  the  jurisdiction  should  be  determined,  not  only 
ivhere  the  amount  of  the  penalty  is  discretionary  in  the 
tribunal  that  adjudicates  upon  it ;  but  also  where  the  pen- 
alty is  to  be  determined  by  a  statutor}^  criterion,  accord- 

(295) 


252-253   SUPREME  COURT  OF  INDIANA. 

The  State  v.  Albertson. 

ing  to  the  amount  which  is  the  subject-matter  of  the  of- 
fence, as  is  the  case  in  the  ofi'ences  of  winning  or  losing, 
extortion,  &c.  In  these  offences,  it  has  been  urged  that, 
when  the  winning  and  losing  does  not  exceed  one  dollar 
and  fifty  cents,  or  the  sum  extorted  does  not  exceed  thirty 
cents,  the  fine  can  not  exceed  three  dollars,  and  of  course 
that,  to  this  amount,  they  are  assigned  exclusively  to  the 
jurisdiction  of  a  justice  of  the  peace.  But  we  think  that, 
by  a  fair  construction  of  the  section  of  the  act  under  con- 
sideration, it  will  be  found  to  embrace  those  ofi'ences  only, 
of  which  the  justice  of  the  peace  can  take  cognizance 
through  all  the  variations  with  which  they  may  be  com- 
mitted. And  we  think  that  this  intention  of  the  legisla- 
ture is  rendered  more  certain,  by  the  diflicnlty  and  uncer- 
tainty that  would  otherwise  attend  the  administration  of 
justice  under  this  part  of  our  criminal  code. 

It  is  worthy  of  notice  that  the  sum,  by  which  the 
amount  of  the  penalty  in  these  cases  is  determined,  is,  of 
itself,  a  subject  of  adjudication,  and  might  be  considered 
greater  or  smaller,  from  the  same  evidence,  by  one  tri- 
bunal than  by  another;  so  that  to  fix  that  sum 
[*253]  as  a  line  of  demarkation  between  two  ^distinct 
jurisdictions,  would  in  many  instances  jeopardize 
the  administration  of  justice;  as,  in  the  ofience  of  win- 
ning, the  justice  of  the  peace  might  be  of  opinion  that  a 
greater  sum  than  one  dollar  and  fifty  cents  was  won,  which 
would  exclude  the  case  from  his  jurisdiction;  and,  in  the 
same  case,  if  afterwards  heard  in  the  Circuit  Court,  the 
jury  might  find  that  the  sum  won  did  not  exceed  one  dol- 
lar and  fifty  cents,  which  would  exclude  the  case  from  the 
jurisdiction  of  the  Circuit  Court.  So  that  although  no 
doubt  existed  as  to  the  commission  of  the  offence,- yet,  on 
account  of  the  difterent  opinions  of  different  tribunals  as 
to  the  sum  involved  in  the  offence,  the  offender  would  go 
unpunished. 

In  the  case  before  us,  the  amount  said  to  have  been 
won,  as  charged  in  the  indictment,  is  thirty-seven-and-a- 

{296) 


MAY  TERM,  1829.  253-254 

The  State  v.  Albertson. 

half  cents;  and  so  leaves  no  doubt  as  to  the  utmost  ex- 
tent of  the  penalty ;  and  therefore  does  not  exhibit  a  full 
view  of  the  difficulty  that  would  grow  out  of  the  rule  of 
determining  the  jurisdiction  by  the  sum  lost  or  won. 
But  if  the  sum  charged  in  the  indictment,  when  less  than 
one  dollar  and  fifty  cents,  would  exclude  the  case  from 
the  jurisdiction  of  the  Circuit  Court,  the  same  sum  found 
in  the  verdict  of  the  jury,  would  have  the  same  effect; 
and  as  we  think  it  was  not  the  intention  of  the  legislature 
to  introduce  this  uncertainty  as  to  the  jurisdiction  of  this 
offence,  we  can  not  think  they  intended  to  determine  the 
jurisdiction  of  the  offence  by  the  sum  lost  or  won,  al- 
though in  a  particular  case  like  the  present,  no  inconve- 
nience would  result  from  the  adoption  of  such  a  rule. 

We  are  therefore  of  opinion  that  the  legislature,  in  as- 
sigiing  jurisdiction  to  the  justices  of  the  peace,  had  refer- 
ence to  offences  by  their  statutory  names,  without  any 
regard  to  the  circumstances  of  the  case  by  which  the 
amount  of  the  penalty  is  to  be  determined.  So  that  as 
soon  as  it  is  known  that  an  individual  has  committed  a 
particular  offence,  it  will  be  also  known  what  tribunal 
has  cognizance  of  that  offence.  But  if  the  jurisdiction 
depended  on  the  degree  of  criminality  in  the  commission 
of  the  offence,  the  proper  tribunal  that  had  cognizance  of 
the  offence,  could  not  be  known  until  something  like  an 
adjudication  had  taken  place;  and  in  many  cases  the  full 
means  of  determining  the  jurisdiction  could  not  be  obtained 

until  the  matter  was  under  judicial  investigation; 
[*254]    and  a  sr.iall  mistake,  *in  a  sum  lost  or  won,  might 

be  fatal  to  the  jurisdiction  resorted  to. 
This  division  of  the  offence  under  consideration,  be- 
tween two  distinct  jurisdictions,  might  also  place  some 
offenders  who  were  guilty  in  nearly  the  same  degree,  under 
very  different  circumstances  as  it  regarded  their  trial,  and 
the  costs  to  which  they  might  be  subjected.  The  case  of  one 
would  be  assigned  to  the  jurisdiction  of  a  justice  of  the 
peace,  and  the  case  of  the  other  to  the  jurisdiction  of  the 

(297) 


254-255    SUPREME  COURT  OF  INDIANA. 

The  State  v.  Albertson. 

Circuit  Court,  because  there  was  a  difference  of  a  few 
cents  in  the  sums  they  had  lost  or  won.  Beside  this,  by 
the  77th  sec.  of  the  same  act,  "all  criminal  prosecutions, 
where  the  penalty  shall  not  exceed  three  dollars,  shall  be 
commenced  within  thirty  days  next  after  the  offence  is 
committed;"  while  the  general  limitation  of  criminal 
prosecutions  is  two  years  (2);  so  that  a  division  of  this 
ofi'ence  between  the  two  jurisdictions,  would  place  the 
cases  of  difierent  persons,  who  might  be  guilty  of  this 
ofi'ence,  under  difierent  acts  of  limitation ;  whereby  they 
might  be  very  difiereutly  afiected  when  there  might  be 
but  a  shade  of  difi'erence  in  their  criminality;  and  this 
difierence  in  the  acts  of  limitation,  if  they  are  both  ap- 
plicable to  this  offence,  dependent  on  the  sum  lost  or 
won  as  to  which  shall  embrace  any  particular  case,  would 
greatly  increase  the  difiiculty  of  convicting  persons  who 
might  be  guilty  of  this  offence.  We  therefore  think 
that  it  was  the  intention  of  the  legislature  to  give  exclu- 
sive jurisdiction  of  this  offence  to  the  Circuit  Court, 
and  that  the  indictment  in  this  case  should  not  have  been 
quashed.  The  case  of  The  State  v.  M'Coy  has  been  re- 
ferred to  as  supporting  a  contrary  rule  of  construction 
(3).  But  that  case  is  predicated  upon  peculiar  expres- 
sions in  the  act  of  assembly  regulating  the  jurisdiction 
of  justices  of  the  peace;  which  necessarily  requires  a 
peculiar  construction,  and  one  that  should  not  be  ex- 
tended beyond  the  express  requirements  of  that  act;  and 
more  especially  as  that  act  has  been  questioned,  as  well 
on  the  ground  of  policy  as  of  constitutionality.  But  al- 
though that  (b'cision  recognizes  a  discretionary  juris- 
diction in  justices  of  the  peace  in  cases  of  assault  and  bat- 
tery, yet  that  jurisdiction  is  not  exclusive,  even  to  the 
amount  of  three  dollars.  The  Circuit  Court  has  jurisdic- 
tion in  all  such  cases,  if  they  have  not  been  adjudicated  on 

and  finally  determined  by  the  justice  of  the  peace. 
[*255]        ^Per  Curiam. — The  judgment  is  reversed  with 

costs.     Cause  remanded,  &c. 
(298) 


MAY  TERM,  1829.  255 

Vattier,  Assignee  v.  Roberts. 

Whitcomb,  for  the  state. 
Caswell,  for  the  defendant. 

(1)  Ace.  R.  C.  1831,  p.  195,  sec.  77. 

(2)  Ace.  R.  C.  1831,  p.  195,  sec.  83,  84. 

(3)  Ante,  p.  5. 


Vattier,  Assignee,  v.  Roberts. 

Corporation — Contract — Liability  of  Members, — The  members  of  an 
incorporated  company  assumed  the  name  of  "  The  Aurora  Associa- 
tion for  Internal  Improvement ; "  and  in  that  name,  by  their  agent,  exe- 
cuted a  title-bond  for  a  lot  in  the  town  of  Aurora.  Held,  that  the  bond 
was  not  obligatory  on  the  members  of  the  company,  and  was  consequent- 
ly not  a  valid  consideration  for  a  note  given  for  the  price  of  the  lot. 

ERROR  to  the  Dearborn  Circuit  Court. 

Blackford,  J. — Assumpsit  on  four  promissory  notes, 
payable  at  a  future  period  to  IN^orris,  agent  to  the  Aurora 
association  for  internal  improvement,  for  the  use  of  said 
association  ;  which  notes  were  assigned  by  Norris  to  Vat- 
tier. Pleas,  1st,  non-assumpsit;  2d,  actio  non,  because 
the  notes  were  given  in  consideration  of  a  supposed  legal 
liability,  on  the  part  of  the  individuals  forming  the  Au- 
rora association,  to  make  the  defendant  a  warranty  deed 
for  a  lot  in  Aurora;  and  the  individuals  forming  the  said 
association  were  not  legally  bound  to  make  the  deed  as 
aforesaid.  There  are  no  replications  to  the  pleas.  After 
the  notes  had  been  proved,  the  defendant  gave  in  evidence 
the  following  writing:  "This  shall  oblige  the  Aurora  as- 
sociation for  internal  improvement,  by  themselves  or  their 
trustees,  to  make  or  cause  to  be  made  unto  Aaron  Rob- 
erts, or  unto  his  heirs,  &c.,  a  deed  of  conveyance  in  fee 
simple  with  general  warranty,  for  lot  numbered  104  in 
the  town  of  Aurora,  provided  51  dollars  of  the  purchase- 
money  therefor  are  paid  in  eight  months,  and  the  balance 
in  five  years  from  this  date,  otherwise  this  obligation  to 

(299) 


255-256    SUPREME  COURT  OF  INDIANA. 

Vattier,  Assignee,  v.  Roberts. 

be  void  and  of  no  efi'ect.  The  deed  to  be  made  as  soon 
as  the  purchase-money  therefor  is  paid,  under  the  penalty 
of  1,000  dollars.  Witness  my  hand  and  seal,  April 
[*256]  30th,  1819.  *By  order  of  the  Aurora  association 
for  internal  improvement.  (Signed)  Richard  Nor- 
ris,  agent." 

The  defendant  proved  by  Norris,  that  this  was  the  only 
writing  given  by  him,  or  said  association,  to  the  defend- 
ant as  evidence  of  the  purchase  of  the  lot.  The  witness, 
on  being  questioned  by  the  defendant,  said  that  his  ap- 
pointment as  agent  was  in  writing;  but  that  he  could  not 
recollect  whether  the  appointment  w-as  signed  by  all  the 
individuals  of  the  association,  or  only  by  the  president 
and  clerk  of  the  meeting.  There  was  no  other  testimony 
of  his  appointment.  The  plaintifl"  called  upon  the  Court 
to  charge  the  jury,  that  it  rested  upon  the  defendant  to 
show  that  Norris  was  not  authorized  by  the  association, 
or  by  the  individuals  composing  it,  to  execute  the  said 
writing  and  bind  them  by  the  same.  Whereupon  the 
Court  charged  the  jury  that  no  authority  wdiatever,  given 
by  the  said  association,  by  the  name  of  the  Aurora  asso- 
ciation for  internal  improvement,  to  the  said  Norris,  could 
authorize  or  enable  him  to  bind  the  association,  as,  by 
their  said  name  of  the  Aurora  association  for  internal  im- 
provement, in  and  by  said  writing  he  has  attempted  to 
do ;  or  would  make  the  said  writing  obligatory  upon  the 
association.  The  jury  gave  a  verdict  for  the  defendant; 
and  there  was  judgment  accordingly. 

The  plaintiff  contends  that  the  Court  below  coinmitted 
an  error  in  refusing  the  instructions  asked  for,  and  in  giv- 
ing those  which  were  given. 

We  can  discover  no  error  in  these  proceedings.  The 
circumstances  of  the  Aurora  association's  boino-  bound  to 
execute  a  warranty  deed  to  the  purchaser,  R()l)erts,  for 
the  lot,  was  the  consideration  of  the  notes  upon  which  this 
action  was  founded.  The  instrument  of  writing  given  by 
Norris,  did  not  bind  the  association,  no  matter  what  his 

(300) 


MAY  TERM,  1829.  256-257 

Pegg  and  Another  v.  Capp,  in  Error. 

authority  may  have  been.  The  company  was  not  a  cor- 
poration, and  the  members  could  not  bind  themselves  by 
the  special  denomination  of  "The  Aurora  association,"  to 
execute  a  conveyance :  a  fortiori,  an  agent  could  not  so 
bind  them.  The  obligation,  to  have  been  valid  against 
the  association,  should  have  been  executed  by  all  the  in- 
dividual members,  either  personally  or  by  their  agent. 
This  was  not  done,  and  the  notes  consequently  stand  with- 
out any  valid  consideration  to  support  them. 

HoLMAN,  J.  was  absent. 
[*257]    ^Per   Curiam. — The  judgment   is   affirmed  with 
costs.     To  be  certified,  &c. 

Dunn,  for  the  plaintiff. 

Caswell,  for  the  defendant. 


Pegs  and  Another  v.  Capp,  in  Error. 

SuBPCENA — Return. 

THE  return  to  a  subpoena  in  Chancery  against  Abner 
M'Carty  and  John  Pegg  was  as  follows:  "Executed  on 
Abner  M'Carty  the  25  March,  1826.  John  Pegg,  not 
found,  20  March,  1826— i?.  John,  sh'ff."  A  decree,  re- 
citing that  it  appeared  to  the  satisfaction  of  the  Court 
that  the  subpoena  had  been  duly  executed,  was  entered 
against  the  defendants  jpro  confesso.  Held,  that  the  return 
was  insufficient  to  authorize  a  decree. 


The  State  r.  Hailstock,  in  Error. 

Assault  with  Intent — Indictment. 

AN  indictment  for  an  assault  with  intent  to  commit  a 
felony  must  show  with  certainty  the  particular  felony  in- 
tended to  be  committed. 

(30iy 


257-258    SQPREME  COURT  OF  INDIANA. 

Sheets  i'.  Ferguson  and  Others,  in  Chancery. 

A  common  assault  is  not  an  indictable  otfence.  It  is 
punishable,  however,  by  a  justice  of  the  peace  (1). 

(1)  A  common  assault  is,  at  common  law,  an  indictable  offence.  4  Bl. 
Coram.  216.  Here,  by  statute,  justices  of  the  peace  have  exclusive  jurisdic- 
tion of  offences  to  which  the  affixed  penalty  does  not  exceed  three  dollars; 
and  a  common  assault  is  an  offence  of  tl  at  kind.  E.  C.  1831,  pp.  193,  195. 
An  assault  with  intent  to  commit  a  felony,  is  an  indictable  offence,  and 
punishable  by  imprisonment  in  the  state  prison  for  any  term  of  time  not 
exceeding  fourteen  nor  less  than  two  years,  and  by  fine  not  exceeding  1,000 
dollars.    Id.  p.  186. 


Sheets  v.  Ferguson  and  Others,  in  Chancery. 

THE  opinion  in  this  case  is  overruled.  Vide  the  order 
of  the  Court,  on  the  report  of  the  commissioner,  in  the 
case  of  Bruner  and  Others  v.  Manville  and  Others,  May 
term,  1832^  post. 


[H<258]  *Ray  and  Another  v.  Roe,  on  the  Demise  of  Brown. 

Fraudulent  Conveyance— Subsequent  Creditor. — The  pendency  of  an 
action  of  slander  does  not,  of  itself,  render  the  defendant's  sale  and  con- 
veyance of  real  estate  void  as  to  the  plaintifT;  though  a  judgment  be 
afterwards  recovered  against  the  defendant,  and  he  have  no  other  proper- 
ty to  satisfy  the  debt  (a). 

Same — Pendente  Lite — Notice. — The  pendency  of  an  action  is  construc- 
tive notice  of  the  matter  involved  in  that  suit ;  and  a  purchaser  of  the 
property  which  is  the  immediate  object  of  the  pending  action  wil'  be 
affected  by  it,  as  a  purchaser  with  notice  (6). 

ERROR  to  the  Union  Circuit  Court. — Ejectment  by 
Roe,  on  the  demise  of  Brown,  against  W.  Ray  and  D. 
Ray.  Plea,  not  guilty.  Verdict  and  judgment  for  the 
plaintiff. 

Scott,  J. — This  was  an  action  of  ejectment  in  the  Union 
Circuit  Court,  We  have  no  information  by  what  kind 
of  title  the  lands  in  controversy  were  claimed  by  either 

(«)   16  Ind,  172 ;  42  ia.  375  ;  35  Id.  170.     (6)  35  Id.  170. 

(302) 


MAY  TERM,  1829.  258-:259 

Ray  and  Another  v.  Roe,  on  the  Demise  of  Brown. 

party.  The  only  point  referred  to  our  adjudication,  is 
the  correctness  of  the  charge  given  by  the  Court  to  the 
jury.  The  Court  instructed  the  jury,  that  a  transfer  of 
property,  made  by  a  defendant  during  the  pendency  of 
an  action  of  slander  against  him,  and  before  the  rendition 
of  judgment,  is  of  itself  fraudulent;  unless  it  be  made  in 
performance  of  a  prior  contract,  or  in  payment  of  a  pre- 
cedent bona  fide  debt;  that  all  purchasers  are  bound  to 
take  notice  of  the  pendency  of  said  suit;  and  that  if  a 
purchase  be  made  during  the  pendency  of  such  action, 
whether  with  or  without  consideration,  it  is  considered 
fraudulent  in  law  as  to  the  judgment  plain tifi";  unless 
there  is  other  property  sufficient  to  satisfy  the  judgment. 
To  this  instruction  the  defendants  except. 

On  the  broad  ground  that  fraud  vitiates  all  contracts,  a 
conveyance  made  with  design  to  avoid  the  payment  of  a 
just  debt,  or  to  defeat  the  recovery  of  a  pre-existing  right, 
is  void  as  it  respects  creditors;  and  the  pendency  of  a 
suit  is  one  of  the  many  badges  of  fraud,  which  would  in- 
duce a  Court  of  equity  to  set  aside  such  conveyance,  or  a 
jury  to  regard  it  as  a  nullity,  in  a  trial  at  law.  The  pen- 
dency of  an  action  is  constructive  notice  of  the  matter  in- 
volved in  that  suit,  and  a  purchaser  of  the  property  which 
is  the  immediate  object  of  the  pending  action  will  be 
afiected  by  it,  as  a  purchaser  with  notice.  But  a  lis  pen- 
dens is  not  even  constructive  notice  of  any  other 
[*259]  points  than  *those  which  are  in  dispute  between 
the  parties  to  such  action.  3  Atk.  392;  Newl.  on 
Con,  506,  507.  So  much,  then,  of  the  instruction  as  states 
that  a  transfer  of  property,  made  during  the  pendency  of 
an  action  of  slander,  is  of  itself  fraudulent,  whether  with 
or  without  consideration;  and  that  ajl  persons  are 
bound  to  take  notice  of  the  pendency  of  such  action,  in 
the  unqualified  manner  there  expressed ;  is  unsupported 
by  authority.  Not  having  the  evidence  before  us,  we  can 
not  say  how  far  these  instructions  might  tend  to  influence 

(303) 


259-260    SUPREME  COURT  OF  INDIANA. 

M'Neely  v.  Driskill. 

the  verdict;  but  there  is  reason  to  presume  that  the  jury 
might  have  been  misled  by  them. 

Fer  Curiam. — The  j  udgment  is  reversed,  and  the  verdict 
&et  aside,  with  costs.     Cause  remanded,  &c. 

Smith,  for  the  plaintiffs. 

Jf  Kinney,  Morris,  and  Perry,  for  the  defendant. 


M'Neely  v.  Driskill. 

Arrest — Justification — Affidavit. — A.  made  an  affidavit  before  a 
justice  of  the  peace,  stating  that  he  had  lost  certain  goods,  which  he  be- 
lieved were  concealed  in  the  possession  of  B.  The  justice  thereupon 
issued  a  warrant  against  B.  for  larceny.  B.  was  arrested  on  the  warrant 
and  afterwards  acquitted.  Held,  that  A.'s  affidavit  contained  no  crimi- 
nal charge,  and  that  he  was  not  therefore  liable  to  B.  in  an  action  for  a 
malicious  prosecution. 

APPEAL  from  the  AVashington  Circuit  Court. 

Scott,  J. — On  the  application  and  affidavit  of  M'Neely 
before  William  Richards,  a  justice  of  the  peace  of  Wash- 
ington county,  a  search  warrant  was  issued  ;  and  the  prop- 
erty described  in  the  warrant  was  found  in  the  possession 
of  Driskill.  The  constable,  as  he  was  commanded,  ar- 
rested Driskill  and  took  him,  with  the  property,  before 
Asher  Wilcox,  another  justice  of  the  peace  of  said  county; 
who,  on  hearing  the  cause,  adjudged  Driskill  not  guilty 
and  discharged  him.  Driskill  then  brought  an  action  on 
the  case  for  malicious  prosecution,  and  obtained  judgment 
in  the  Washington  Circuit  Court  ;  from  which  judgment 
this  appeal  is  taken. 

The  appellant  lias  assigned  several  reasons  for  reversing 

the  judgment  in  this  case,  but  one  of  which  we  deem  it 

necessary  to  notice.     The  affidavit  made  by  tlie 

['-'-260]    appellant  before  '''AYilliam  Richards,  Escpiire,  did 

not  authorize  the  justice  to  issue  the  warrantcom- 

plained  of.     The   following  is  the  affidavit:     "State    of 

G304) 


MAY  TERM,  1829.  260 

Taylor  i.  M'C'rackin. 

Indiana,  Washington  count}',  to  wit.  Be  it  remembered, 
that  on  the  24th  day  of  December,  1827,  personally  came 
before  me,  William  Richards,  a  justice  of  the  peace  of  said 
county,  Robert  M'Neely  of  said  county,  and  upon  his' 
oath  solemnly  saith,  that  he  lost  out  of  his  enclosure,  ia 
Brown  township  in  said  county,  five  hogs,  two  sows,  an<l 
three  barrows,  within  fifteen  days  last  past;  and  that  he 
believes  that  they,  or  a  part  of  them,  are  concealed  in  the 
custody  of  Elisha  Driskill,  Sen.,  of  Brown  township  in 
said  county.  And  further  this  deponent  saith  not. — 
Robert  M'Xeely."  The  action  is  brought  for  wrongfully 
and  maliciousiy  prosecuting  the  appellee  on  a  charge  of 
larceny.  This  affidavit  shows  a  state  of  facts  on  which  an 
action  of  trover  might  have  been  maintained,  but  it  con- 
tains no  charge  of  larceny  against  any  person.  The  ap- 
pellant had  lost  his  property,  and  wished  to  recover  it ;  he 
states  that  fact  to  a  justice  of  the  peace.  The  justice  forms 
his  judgment  upon  the  facts  stated  ;  he  issues  his  mandate 
to  an  officer  to  search  for  the  property,  and  to  bring  the 
person,  in  whose  possession  it  may  be  found,  before  him- 
self or  some  other  justice  of  the  peace,  &c.  This  was  an 
error;  but  it  is  the  error  of  the  justice,  and  not  of  the  ap- 
pellant. And  if  a  justice  of  the  peace,  by  mistake  of 
judgment,  conceives  an  act  to  be  felon}-  which  is  not 
felony;  and  in  consequence  of  that  mistake,  causes  an  in- 
nocent person  to  be  arrested  and  imprisoned  ;  the  law  will 
not  hold  the  person  who  made  the  complaint  responsible, 
in  this  form  of  action,  for  the  consequence  of  such  errors. 
3  Esp.  Rep.  165.     The  judgment  must  be  reversed. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 

Thompson,  for  the  appellant. 

Stevens,  for  the  appellee. 


Taylor  r.  M'Crackin. 


Widow — Dower — Title-Bond — Ejectment. — A.  died  in  possession  of  a 
tract  of  land,  which  he  held  by  virtue  of  a  title-bond  executed  by  G  The 

Vol.  II.— 20  (305) 


260-261    SUPREME  COURT  OF  INDIAi^A. 

Taylor  r.  M'Crackin. 

widow  of  A.  remained  in  possession  and  married  B.,  who  also  continued 
in  i)ossession.  C.  having  the  legal  title,  brought  an  action  of  disseisin  for 
the  premises  against  B.  without  having  previously  demanded  the  posses- 
sion. 

[*261]  ^'Held,  1st,  that  though  the  statute  gives  to  the  widow  of  A.  a  right 
of  dower  in  the  equitable  estate,  her  claim  constituted  no  defence 
in  law  to  the  action  of  disseisin  brought  by  C. 

Held,  2d,  that  the  statutory  provision — autlorizing  the  widow  to  continue 
in  possession  of  the  mansion-house,  and  the  messuage  thereto  belonging, 
until  her  dower  is  assigned — applies  only  to  the  persons  claiming  under 
her  deceased  husband,  and  not  to  those  claiming  by  an  adverse  title. 

Held,  3d,  that  though  a  judgment,  in  the  action  of  disseisin,  settles  the  titles 
held  by  the  parties  at  the  time  of  its  rendition,  it  does  not  prevent  the 
losing  party  from  enforcing  a  superior  title  subsequently  acquired,  nor 
preclude  either  of  the  parties  from  applying  to  a  Court  of  chancery  to 
perfect  his  title,  or  to  enjoin  a  judgment  obtained  contrary  to  equity. 

Held,  4th,  that  C.  could  not  sustain  his  action  of  disseisin  against  B.  under 
the  circumstances  of  this  case,  without  having  previously  demanded  of 
him  the  possession  of  the  premises. 

APPEAL  from  the  Hendricks  Circuit  Court. 

HoLMAN,  J. — William  M'Crackin  commenced  an  action 
•of  disseisin  against  Isaac  Taylor,  for  a  tract  of  land  in  Hen- 
dricks county,  on  the  3d  of  January,  1829.  Taylor  pleaded 
not  guilty.  He  also  pleaded  that  William  M'Crackin,  who 
was  possessed  of  the  legal  title  to  the  said  tract  of  land, 
bargained  and  sold  the  said  land  to  Robert  M'Crackin, 
and  executed  to  said  Robert  a  title-bond  for  said  land 
This  bond  is  set  out  in  the  plea;  is  dated  the  31st  of  May, 
1826;  is  in  the  penalty  of  1,000  dollars,  conditioned  for 
the  conveyance  of  the  said  tract  (  f  land  to  the  said  Rob- 
ert, his  heirs,  &c. ;  and  is  under  the  seal  of  the  said  Wil- 
liam M'Crackin.  This  plea  states  that,  at  the  time  of  ex- 
ecuting said  bond,  the  said  William  put  the  said  Robert 
into  peaceable  possession  of  the  said  land,  who  continued 
to  reside  thereon  until  the  9th  of  June  in  the  same  year, 
Avhen  he  departed  this  life,  leaving  Mary  M'Crackin,  his 
widow,  in  peaceable  possession  ;  that  said  Mary,  being 
entitled  to  dower  in  the  said  land,  continued  in  possession 
of  the  mansion-house,  and  messuage  thereunto  belonging, 
situated   on  the  said  tract  of  land:  and  that  while  so  in 

(306) 


MAY  TERM,  1829.  261-262 


Taylor  v.  M'Crackin. 


possession,  on  the  27th  of  December,  1827,  she  intermar- 
ried with  the  said  Taylor,  who,  in  right  of  his  said  wife, 
still  continues  in  possession  of  the  mansion-house  and 
messuage  aforesaid,  dower  of  the  said  hxnd  not  having 
been  assigned  to  the  said  Mary,  nor  to  the  said  Taylor. 
To  this  plea  there  was  a  demurrer;  which  was  correctly 
sustained;  not  onh'  for  the  cause  of  demurrer  assigned, 

viz.,  that  the  act  of  assembly  authorizing  this  ac- 
[*262]    tion  contemplates  the  wdiole  case  to  *be  tried  on 

the  issue  of  not  guilty  ;  but  also  because  the  sub- 
ject-matter of  the  plea  is  not  a  legal  bar  to  this  action. 

The  claim  by  which  Robert  M'Crackin,  in  his  life-time, 
held  this  land,  was  only  an  equitable  title;  and  although 
the  act  of  assembly  provides  that  the  widow  shall  be  en-, 
do  wed  of  one-third  part  of  all  the  lands,  whether  legal 
or  equitable,  of  which  her  husband  was  seized  during  the 
coverture;  yet  when  she  is  endowed  of  an  equitable  estate, 
she  receives  but  a  title  in  equity,  which  can  not  be  set  up 
at  law  in  bar  of  a  legal  title.  The  act  of  assembly  gives 
her  a  legal  right  to  an  equitable  estate,  but  it  does  not 
convert  her  equitable  estate  into  a  legal  one.  It  still  re^ 
mains  a  subject  of  a  Court  of  chancery,  and  of  which  a 
Court  of  law  can  not  take  cognizance.  The  provision  of 
the  act  of  assembly,  that  authorizes  the  w^idow  to  continue 
in  the  mansion-house,  and  the  messuage  thereunto  belong- 
ing, until  her  dower  is  assigned,  relates  only  to  her  claim 
against  the  heirs,  or  those  claiming  the  estate  under  her 
deceased  husband,  and  does  not  extend  to  strangers  or 
persons  claiming  by  an  adverse  title.  The  widow,  under 
the  act  of  assembly,  has  no  higher  title  than  the  husband 
had  in  his  life-time.  She  may  maintain  her  possession 
of  the  mansion-house,  and  the  appurtenant  messuage,  un- 
til her  dower  is  assigned,  by  virtue  of  her  husband's  title, 
whether  legal  or  equitable,  against  any  person  who  claims 
under  the  same  title;  but  she  is  in  no  better  condition  to 
defend  her  possession,  against  an  adverse  or  paramount 
title,  than  her  husband  would  have  been.     And  it  Avill  not 

(307) 


262-263    SUPKEME  COURT  OF  IXDIAXA. 

Taylor  v.  M'Crackin. 

be  contended  that  the  husband,  in  his  life-time  could  have 
defended  his  possession  to  these  premises,  by  virtue  of 
this  title-bond,  against  the  legal  title  set  up  in  the  declar- 
ation. If  Robert  M'Crackin,  in  his  I'fe-time,  had  a  clear 
equity  in  this  tract  of  land  by  virtue  of  this  contract,  he 
might  have  compelled  a  specilic  performance  of  the  con- 
tract ;  and  those  claiming  under  him  have  the  same 
equitable  right  to  have  the  contract  specifically  performed. 
But  until  there  is  a  performance  of  the  contract,  the  law 
can  take  no  notice  of  the  title  to  the  land  created  there- 
by.    Porter's  heirs  v.  Robinson,  3  Mar.  253. 

It  is  contended  in  support  of  this  plea  that,  if  it  is  not 
allowed,  the  right  of  dower  in  this  case  will  be  perpet- 
ually barred  ;  inasmuch  as  the  act  of  assembly  declares, 
that  the  judgment  in  an  action  of  disseisin  shall 
[*263]  be  conclusive  upon  the  parties,  and  *shall  be  a 
bar  to  another  suit  for  the  same  cause,  upon  titles 
held  by  them  at  the  time  of  such  judgment.  There  is 
nothing  here  to  alfect  this  right  of  dower,  if  Robert 
M'Crackin  in  his  lifetime  had  an  equitable  title  to  this 
land.  The  judgment  in  the  action  of  disseisin  is  conclu- 
sive on  the  parties,  in  the  same  manner  as  judgments  in 
personal  actions  and  in  writs  of  right.  Under  the  act  of 
assembly,  the  judgment  settles  the  controversy  between 
the  parties,  about  the  titles  held  by  them  at  the  time  it  is 
rendered;  but  if  the  losing  party  should  afterwards  ac- 
quire a  superior  title,  he  is  not  barred  h\  the  judgment 
from  enforcing  that  title  in  another  action.  But  this 
clause  in  the  act  of  assembly,  has  no  bearing  upon  the 
right  that  either  party  has  to  tlie  interposition  of  a  Court 
of  chancery  in  his  behalf,  in  order  to  perfect  his  title,  or 
to  enjoin  proceedings  on  a  judgment  obtained  contrary 
to  equity. 

The  evidence  given  in  this  case  is  set  forth  in  a  bill  of 
exceptions,  from  which  ii  appears  that  Robert  M'Crackin 
was  the  son  of  William  M'Crackin,  and  was  in  possession 
of  the  land  in  controversy  with  the  knowledge  and  con- 

730,S)       ■ 


MAY  TERM,  1829.  263-264 

Taylor  v.  M'Crackin. 

sent  of  his  father;  that  he  improved  the  land,  and  con- 
tinued in  possession  for  several  years,  and  until  the  time 
of  his  death,  without  the  payment  of  rent;  that  his  widow 
continued  in  possession,  and  enjoyed  the  land,  until  her 
intermarriage  with  Taylor;  and  that  Taylor  lived  with 
his  said  wife  on  the  land,  and  still  continued  to  hold  pos- 
session. There  was  no  proof  of  notice  to  quit,  or  demand 
of  the  possession,  before  the  commencement  of  this  action ; 
and  the  Court  instructed  the  jury  that  three  months' 
notice  to  quit  was  unnecessary.  On  th£  trial,  Taylor 
offered  in  evidence  to  the  jury  the  bond  from  William 
M'Crackin  to  Robert  M'Crackin,  for  the  conveyance  of 
said  tract  of  land  as  set  forth  in  his  plea:  the  execution 
of  which  bond  was  proved  by  one  of  the  subscribing  wit- 
nesses. And  although,  as  the  bill  of  exceptions  states,  it 
was  admitted  that  Robert  M'Crackin  was  in  possession 
of  the  land  when  the  bond  was  executed,  and  continued 
in  possession  until  his  death,  and  that  his  widow  held 
possession  until  her  intermarriage  with  Taylor,  and  that 
Taylor  ever  since  continued  in  possession,  yet  the  Circuit 
Court  rejected  the  evidence,  and  would  not  permit  the 
bond  to  go  to  the  jur3^ 

The  plaintiff  obtained  a  verdict  for  damages,  on 
[*264]    which  a  ^judgment  was    rendered   for  the   pos- 
session of  the  premises,  and  the  damages  assessed 
by  the  jury. 

It  is  here  contended  that  the  judgment  is  erroneous,  in- 
asmuch as  there  was  no  notice  to  quit,  nor  any  demand 
of  the  possession,  prior  to  the  commencement  of  the  ac- 
tion. On  this  subject  there  is  some  uncertainty.  The 
act  of  assembly  authorizing  this  action  is  silent  on  the 
subject  of  notice  to  quit,  or  demand  of  the  possession  of 
the  disseisor,  or  person  in  possession;  and  the  general 
tenor  of  the  act  of  assembly  and  the  nature  of  the  action 
of  disseisin,  seem  to  lead  to  e  idea  that  no  notice  is  nec- 
essary. But  when  we  consider  the  consequences  that 
may  result  to  tenants  in  possession  from  this  ^,onstruc- 

(309) 


264-265   SUPREME  COUPvT  OF  INDIANA. 

Taylor  v.  M'Crackin. 

tiou,  we  feel  unwilling  to  admit  it  in  its  full  extent.  The 
act  of  assembly  states  that  the  remedy,  provided  by  this 
action,  shall  embrace  all  the  various  remedies  known  to 
the  common  law  for  enforcing  the  deliver}'  of  possession 
or  seizure  of  lands,  &c. ;  but  we  presume  it  was  the  inten- 
tion to  embrace  those  various  remedies  with  some  degree 
of  consistency.  Although  it  may  embrace  some  of  the 
advantages  of  both  a  real  and  a  mixed  action,  and  be 
founded  on  the  right  of  property  as  well  as  the  right  of 
possession ;  yet  "we  can  not  consider  the  defendant  as  a 
wrong-doer,  and  demand  damages  and  costs  against  him, 
while  resting  for  support  upon  mere  right,  as  in  a  writ 
of  right,  when  neither  damages  nor  costs  are  recovered. 
At  common  law  a  disseisor  was  a  wrong-doer;  for  if  he 
was  recognized  as  in  possession  as  a  tenant  in  any  capac- 
ity, the  action  would  not  lie;  and  the  action  of  ejectment 
will  not  lie  against  a  tenant  at  will,  until  the  will  of  the 
landlord  is  determined;  2  Stark.  Ev.  530;  and  we  think 
it  inconsistent  with  the  principles  of  justice  to  subject  a 
man  to  costs  of  suit  for  holding  lands  of  which  he  has  no 
reason  to  suppose  the  owner  wants  possession.  We  there- 
fore think  the  doctrine  of  notice  to  quit,  and  demand  of 
possession,  is  applicable  to  this  action  as  to  the  action  of 
ejectment,  and  we  shall  consider  the  subject  accordingly. 
The  act  of  assembly,  respecting  the  notice  that  is  to  be 
given  to  tenants  for  years  or  at  will  holding  over,  is  not 
applicable  to  this  case,  as  here  is  no  rent  reserved  ;  nor  has 
this  case  any  features  that  will  enable  us  to  recognize  it 

as  such  a  tenancy  as  requires  notice  to  quit,  to  be 
[*265]    given  any  particular  length  of  *time  before  .the 

action  is  brought.  But  as  Robert  M'Crackin  was 
in  peaceable  possession,  with  the  knowledge  and  consent 
of  William  M'Crackin,  and  as  Taylor  continued  to  hold 
the  premises  by  virtue  of  Robert  M'Crackin's  possession, 
we  can  not  look  upon  Taylor  as  a  wron-gdoer,  which  is 
subject  to  an  action  without  any  notice  or  demand  what- 
ever.    Taylor,  as  to  his  possession,  stands  in  the  same  re- 

(310)       : 


MAY  TERM,  1829.  265 


Taylor  r.  M'Crackin. 

lation  to  William  M'Crackin  that  Robert  M'Crackin  did 
in  his  life-time  ;  and  it  would  seem  contrary  to  the  prin- 
ciples of  justice  to  have  subjected  Robert  M'Crackin  to 
this  action,  before  the  possession  had  been  demanded  and 
refused.  Here  has  been  an  unmolested  possession  for 
about  live  3'ears,  with  the  knowledge  and  consent  of  the 
owner  of  the  land,  which  would  certainly  place  the  posses- 
sor in  the  condition  of  a  tenant  at  will,  who  would  not  be 
liable  to  an  action  of  ejectment,  until  he  had  received  ex- 
press evidence  that  the  owner  of  the  land  had  determined 
his  will,  either  by  a  notice  to  quit,  a  demand  of  posses- 
sion, or  by  some  other  act  that  would  determine  the  ten- 
ancy.    2  Stark.  Ev.  530. 

Directly  connected  with  this  subject  is  the  title-bond 
for  this  land  that  was  oftered  in  evidence  and  rejected. 
This  bond  was  inadmissable  as  a  bar  to  the  action,  but  it 
was  important  to  show  in  what  character  Taylor  held  the 
possession  of  his  land;  and  taking  the  bond  as  it  appears 
on  its  face,  in  connection  with  the  other  testimony,  it 
presents  conclusive  evidence  that  he  was  not  in  possession 
as  a  trespasser  or  disseisor,  but  that  he  held  a  possession 
which  a  Court  of  chancery  would  guaranty,  by  compell- 
ing a  specific  pe  formance  of  the  contract  under  which  he 
claimed;  and  surely  he  had  a  right  to  show  by  that  con- 
tract, that  he  was  entitled  to  at  least  a  demand  of  the 
possession  before  he  could  be  subject  to  this  action.  In  the 
case  of  Right  v.  Beard,  13  East,  210,  the  plaintiff  put  the 
defendant  into  possession  under  a  contract  of  sale,  and 
shortly  afterwards  commenced  an  action  of  ejectment 
against  him.  The  plaintiff  was  non-suited ;  the  Court 
holding  that  as  the  defendant  was  put  in  possession  by 
virtue  of  a  contract,  he  was  not  liable  to  the  action  until 
the  possession  was  demanded.  See  also  the  same  principle 
in  the  cases  o^  Jackson  v.  Bryan,  1  Johns.  322;  Jackson  v. 
Rowan,  9  Johns.  R.  330.  But  if  the  defendants,  in 
these  cases,  had  been  precluded  from  proving  the  con- 
tracts  bv    virtue    of    which    they    entered,   they    must 

(311) 


266  SUPREME  COURT  OF  INDIANA. 

Logan  II.  Siggerson. 

[*266]  *have  been  considered  as  wrong-doers,  and  com- 
pelled to  pay  the  costs  of  suit,  without  notice  to 
quit,  or  demand  of  possession.  We  think,  therefore,  that 
Taylor  had  a  right  to  show  the  nature  of  the  contract  by 
virtue  of  which  he  was  in  possession  ;  and  for  this  purpose, 
the  bond  should  have  been  admitted  in  evidence. 

Per  Curiam. — The  judgment  is  reversed,  and  the  verdict 
set  aside,  with  costs.     Cause  remanded,  &c. 

Brown  and  Hester,  for  the  appellant. 

Fletcher  and  Gregg,  for  the  appellee. 


Logan  v.  Siggerson. 


Trespass — Judicial  Act — Pleading. — Trespass  de  bonis  asportatis.  Plea, 
that  the  defendant,  as  a  justice  of  the  peace  had  entered  a  fine  against 
the  plaintiff  for  an  assault  committed  by  him  in  the  defendant's  pres- 
ence. Held,  on  demurrer,  that  the  plea  was  bad,  because  it  did  not  show 
bat  that  the  fine  was  imposed  in  the  offender's  absence. 

APPEAL  from  the  Marion  Circuit  Court. 

Scott,  J. — The  appellee,  who  was  plaintiff  in  the  Circuit 
Court,  declared  against  the  appellant  in  an  action  of  tres- 
pass for  tortiously  taking tliree  saws  and  converting  them 
to  his  own  use.  The  defendant  pleaded  the  general  issue, 
which  was  afterwards  withdrawn.  He  also  pleaded  speci- 
ally, that  at  the  time  when,  &c.,  he  was  an  acting  justice 
of  the  peace,  and  had  full  power  and  authority  to  inquire 
into,  and  in  a  summary  way  to  punish  by  tine  not  exceed- 
ing three  dollars,  all  trivial  breaches  of  the  peace,  and  to 
give  judgment  and  award  execution  ;  that  at  the  time 
when,  &c.,  by  consideration  and  judgment  of  the  said  de- 
fendant as  justice  of  the  peace,  it  was  adjudged  that  the 
state  of  Indiana  should  recover  against  the  said  plaintiff 
the  sum  of  two  dollars  as  a  tine,  and  fifty  cents  as  costs, 
for  an  assault  which  he,  the  said  plaintiti',  had,  in  the  pres- 
ence and  view  of  the  said  defendant,  committed  on  the 


MAY  TERM,  1829.  266-267 

Logan  V.  Siggerson. 

body  of  one  William  Logan,  &c. ;  that  he  issued  execu- 
tion, and  that  the  goods  in  the  declaration  mentioned 
were  levied  on  and  sold,  &c.  To  this  plea  the  plaintiff 
replied,  that  William  Logan  who,  it  is  alleged,  was 
assaulted,  and  William  Logan  the  defendant  who 
[*267]  as  *a  justice  of  the  peace  imposed  the  fine,  are  one 
and  the  same  person,  and  that  the  said  assault  was 
not  committed  upon  the  said  William  Logan,  when  he 
was  in  the  execution  of  his  office  as  a  justice  of  the  peace. 
General  demurrer  to  this  replication,  and  joinder.  De- 
murrer overruled.  Writ  of  inquiry  and  final  judgment 
for  the  plaintiff. 

The  plea  is  defective.  It  was  not  enough  that  the  de- 
fendant should  show,  in  his  plea,  that  he  had  authority  to 
impose  a  fine  for  an  assault.  He  should  have  shown,  also, 
that  he  had  caused  the  offender  to  be  brought  before  him, 
and  had  thus  obtained  jurisdiction  of  the  person,  as  well 
as  of  the  crime.  For  aught  that  appears  in  the  plea,  the 
fine  might  have  been  imposed  in  the  absenca  of  the  of- 
fender, and  without  any  notice  to  him  of  the  amount  of 
the  fine,  or  even  of  its  existence,  till  he  was  visited  by  the 
officer  with  the  execution  in  his  hand.  The  replication 
is  defective  also;  but  the  plea  being  bad,  the  defendant 
could  not  take  advantage  of  it.  The  demurrer  carries  us 
back  to  the  first  error.  Setting  aside  the  parts  which  are 
defective,  nothing  remains  but  the  declaration ;  and,  as 
the  plaintiff'  has  the  judgment  below  it  must  stand. 

Pe7'  Curiam. — The  judgment  is  affirmed  with  1  per  cent. 
damages  and  costs. 

Fletcher,  for  the  appellant. 

Wick^  for  the  appellee. 


(313) 


267-268    SUPREME  COURT  OF  INDIANA. 


Louisville  and  Portland  Canal  Company  v.  Holborn,  in  Error. 


Louisville  and  Portland  Canal  Company  v.  Holborn,  in 

Error. 

Replevin — Custody  of  Law  (a). 

A.,  to  whom  B.  was  indebted,  levied  an  attachment  on 
certain  goods  as  B.'s  property.  C,  the  owner  of  the  goods, 
brought  an  action  of  replevin  against  A.  and  recovered 

(1)  Replevin  lies  in  such  cases  as  that  in  the  text ;  and  it  is  no  objection 
to  the  action  that  the  goods  are  in  the  custody  of  the  law.  Chinn  v.  Rus- 
sell, ante,  p.  172,  and  note  (3). 


[*268]     *Markle  and  Another  v.  Rapp  and  Others,  in 

Error. 

Mortgage — Foreclosure — Remedy  (6) . 

A  PERSON,  liolding  a  bond  and  mortgage  for  a  debt, 
may  proceed  first  by  an  action  on  the  bond,  and  subject 
all  the  debtor's  property  both  real  and  personal  to  his 
judgment,  without  abandoning  his  lien  on  the  mortgaged 
premises,  unless  he  have  taken  them  in  execution.  But 
if  the  creditor  elect  to  proceed  first  on  his  mortgage,  he 
is  obliged  by  the  statute  of  1824  to  rely  alone  on  the 
mortgaged  premises  for  a  satisfaction  of  his  demand  (1). 

(1)  This  statute  of  1824  is  repealed.  Vide  note  to  Youse  v.  AVOreury, 
ante,  p.  246.  As  to  the  law  on  the  subject,  independently  of  the  statute, 
vide  Stevens  v.  Dufour,  Vol  l,of  these  Rep.  387. 


Chinn  and  Another  v.  Perry, 

Witness — Competency — Value. — Goods  were  taken  in  execution  ;  and 
a  delivery-bond  payable  to  the  execution-plaintiff  was  executed  by  the 
debtor  and  his  surety,  conditioned  for  the  delivery  of  the  property  in  as 

(a)  6  Blkf.  136  ;  4  Id.  304.     (b)  13  Ind.  75. 

(314) 


MAY  TERM,  1829.  268-269 

Chinn  and  Another  v.  Perry. 

good  order  as  it  was  at  the  date  of  the  bond.  Debt  on  the  bond.  Breach, 
the  non-delivery  of  the  property  in  as  good  order  as  it  was  when  then  the 
bond  was  executed.  Demurrer  to  the  decLaration  and  judgment  for  the 
plaintiff. 
JJekl,  on  the  execution  of  the  writ  of  inquiry,  that  the  sheriff  was  a  compe- 
tent witness  to  prove  the  value  of  the  property.  Held,  also,  that,  in  the 
absence  of  all  testimony  as  to  the  value  of  the  property,  the  amount  of 
the  execution  was  the  proper  measure  of  damage.  Held,  also,  that  the 
qiumlum  of  damages  sustained  by  the  plaintiff  for  the  breach  of  contract, 
M'as  the  only  subject  of  inquiry  before  the  jury. 

ERROR  to  the  Decatur  Circuit  Court.— This  was  an 
action  of  debt  by  Perry  against  Chinn  and  Parks,  founded 
on  a  delivery-bond  payable  to  Perry,  the  execution-plain- 
tiff. 

HoLMAN,  J. — Declaration  on  a  bond  for  the  delivery  of 
property  taken  in  execution.  The  undertaking  in  the 
condition  of  the  bond  was,  to  deliver  the  property  "in  as 
good  order  as  it  then  was."  The  breach,  inte)^  alia,  is, 
that  the  property  was  not  delivered,  nor  any  part  thereof, 
^'in  as  good  order"  as  it  was  at  the  date  of  the  bond. 
Demurrer  to  the  declaration.  Demurrer  overruled,  interlo- 
cutory judgment  given,  and  writ  of  inquiry  award- 
{^269]  ed.  The  sheriff,  by  whom  the  property  was  *taken 
in  execution,  and  by  whom  the  delivery-bond  was 
taken  and  attested,  was  introduced,  on  the  inquest  of  dam- 
ages, to  prove  the  value  of  the  property.  The  defendants 
objected  to  his  admission  on  the  ground  of  his  incompe- 
tency, but  he  was  admitted  by  the  Court;  to  which  opin- 
ion of  the  Court  the  defendants  excepted.  The  defend- 
ants moved  the  Court  to  instruct  the  jury  of  inquest,  that 
if  the  property  was  delivered  at  the  time  and  place  men- 
tioned in  the  bond,  but  not  in  good  order,  then  the  proper 
measure  of  damages  to  be  assessed  was  the  difference  be- 
tween the  value  of  the  property  at  the  time  the  bond  was 
executed  and  the  time  of  the  deliver}'.  This  instruction 
the  Court  refused  to  give,  but  instructed  the  jurj'  that 
they  were  not  impaneled  to  say  whether  the  propert}' was 
delivered  or  not;  but  simply  to  inquire  what  damages  the 

(315) 


269-270    SFPREME  COURT  OF  INDIAXA. 

Shelmire  v.  Thompson  and  Others. 

phiiiitift"  had  sustained  by  the  non-delivery;  and  that 
whether  the  property  was  delivered  pursuant  to  the  con- 
dition of  the  bond,  or  whether  it  was  delivered  in  good 
order,  were  not  questions  in  issue  before  the  jury.  To 
this  opinion,  also,  the  defendants  excepted.  There  was  an 
assessment  of  damages,  and  a  judgment  for  the  plaintift'. 

The  defendants  in  the  Circuit  Court,  the  plaintifls  in 
this  writ  of  error,  rely  upon  the  admission  of  the  sherift" 
as  a  witness,  and  the  instructions  of  the  Circuit  Court  to 
the  jury,  being  the  errors  assigned  for  a  reversal  of  this 
judgment.  But  there  is  no  error  in  the  proceedings.  The 
sheriff  was  not  interested,  and  of  course  was  a  competent 
Avitness.  He  was  the  subscribing  witness  to  the  bond, 
and  would  have  been  competent  to  prove  its  execution. 
There  was  nothing  he  could  gain  or  lose,  by  the  result  of 
his  testimony,  as  to  the  value  of  the  property.  Besides, 
in  the  absence  of  all  testimony  as  to  the  value  ot'  the  prop- 
erty, the  amount  of  the  execution  was  the  proper  meas- 
ure of  damages  (1),  The  instructions  of  the  Circuit  Court 
to  the  jury  are  unexceptionable.  The  demurrer  admitted 
the  non-delivery  of  the  property  in  as  good  order  as  it 
was  in  when  the  bond  was  executed,  and  a  delivery  in  no 
other  order  would  have  been  a  compliance  with  the  un- 
dertaking. The  damages  sustained  by  the  plaintiff  on 
account  of  the  non-delivery  was  the  only  subject  before 
tiie  jury. 

Per  Curiam. — The  judgment  is  affirmed,  with  5  per  cent. 
damages  and  costs. 
[*270]       *TT7rA-,  for  the  plaintiffs. 
Stevens,  for  the  defendant. 

(1)  Tide  M'Coy  v.  Elder,  ante,  p.  183,  and  note. 


Shelmire  r.  Thompsox  and  Others. 

Keformatiox — Kes  Adjudicata — IxjrxGTiON". — A.  B.  and  C.  executed  a 
note  to  D.  for  the  pavment  uf  monev.     The  name  of  C.  was  afterwards 

(316) 


MAY  TERM,  1829.  270-271 

Shelmire  r.  Thompson  and  Other-:. 

erased  without  tlie  knowledge  of  the  other  obligors,  and  a  judgment  ob- 
tained against  A.  and  B.  A  bill  was  filed  by  A  and  B.  in  order  to  have 
the  judgment  enjoined,  averring  their  ignorance  of  the  erasure  at  the 
time  of  the  trial  at  law.  Held,  that  the  erasure  was  a  defence  purely 
legal,  and  that  the  complainants'  ignorance  of  the  erasure  as  averred, 
was  no  ground  for  the  interposition  of  a  Court  of  chancery  (a). 

APPEAL  from  the  Martin  Circuit  Court. 

HoLMAX,  J. — Thompson,  Allen,  and  Conner,  iiled  a  bill 
in  chancer}'  in  the  Martin  circuit  Court,  praying  relief 
by  injunction  against  a  judgment  at  law,  obtained  against 
tliem  and  others  by  E.  Shelmire.  The  bill  states  that  on 
the  30th  of  January,  1821,  F.  Sholts  was  indebted  to  E. 
Shelmire,  who  is  made  defendant  to  the  bill,  in  the  sum 
of  704  dollars  and  41  cents,  for  which  sum  Sholts  and  the 
complainants,  together  with  J.  Johnson  and  divers  others, 
executed  their  joint  and  several  note  under  seal ;  on  which 
note  suit  was  afterwards  instituted,  and  a  judgment  ob- 
tained against  all  the  obligors,  except  Johnson  and  one 
who  had  died  ;  and  although  it  appears  by  the  record  that 
D.  Hart,  Esq.,  appeared  in  behalf  of  the  defendants  in 
said  suit,  yet  they  never  did  employ  him  or  any  other  per- 
son to  appear  for  them.  The  complainants  also  state  that 
they  would  not  have  executed  said  note,  as  the  sureties  of 
Sholts,  had  not  all  the  other  sureties,  including  Johnson, 
joined  in  its  execution,  and  that  Johnson  did  sign  and 
seal  said  note;  but  that  the  name  of  Johnson  was  after- 
wards designedly  erased,  without  their  knowledsre  or  con- 
sent, by  some  person  to  them  unknown,  whereby  the  note 
became  null  and  void,  and  not  their  note,  as  they  are  ad- 
vised and  believe ;  that  at  the  time  of  the  trial  at  law, 
they  did  not  know  that  the  signature  and  seal  of  Johnson 
had  been  erased,  nor  that  he  was  not  a  co-defendant  with 

them  :  and  that  if  they  had  known  that  fact,  they 
["^271]    would  *have  defended  the  action  at  law.     They 

require  the  defendant's  answer,  particularly  as  to 
tlie  erasure,  and  the  person  by  whom   it  was  done;   and 

(a)  12  Ind.  42. 

(317) 


271  SUPREME  COURT  OF  INDIANA. 

Shelmire  v.  Thompson  and  Others. 

tlioy  pray  an  injunction,  which  was  granted.  The  defend- 
ant, in  answer,  denies  all  knowledge  of  when,  how,  by 
whom,  or  for  what  purpose  the  erasure  was  made,  and 
claims  all  legal  advantages.  C.  R.  Brown,  one  of  the  ob- 
ligors against  whom  the  judgment  Avas  given,  and  who 
the  defendant  contends  is  an  incompetent  witness,  deposes, 
that  the  defendant  put  this  note  into  his  hands,  among 
others,  to  be  put  in  suit;  that,  after  looking  at  the  note, 
he  informed  her  that  Johnson  was  sheriflt",  and  another  of 
the  obligors  coroner,  so  that  there  was  no  person  to  serve 
process;  that  she  remarked  that  Johnson  was  good  for 
nothing,  and  she  would  scratch  his  name  oft";  but  he  ad- 
vised her  not  to  do  so  without  the  knowledge  and  consent 
of  all  the  obligors,  and  left  the  note  with  her;  that,  in  tlie 
evening  of  the  same  day,  the  note  came  to  him  from  tiie 
defendant,  with  directions  to  commence  suit  on  it  im- 
mediatel}' ;  and  at  that  time  the  name  of  Johnson  had 
been  obliterated  by  drawing  a  pen  over  it.  From  the  rec- 
ord in  the  suit  at  law,  it  appears  that  D.  Hart  appeared 
as  counsel  for  the  defendants,  and  had  oyer  of  the  note. 
The  Circuit  Court  decreed  a  perpetual  injunction  of  the 
judgment  at  law,  as  to  the  complainants;  but  the  decree 
was  not  in  any  manner  to  aftect  the  other  judgment-de- 
fendants.    The  defendant  appealed  to  this  Court. 

We  see  no  principle  in  equity  by  which  this  decree  can 
be  supported.  The  case  presents  no  ground  of  relief. 
Admitting  all  the  complainants  have  stated  in  tlioir  own 
favor,  taken  in  the  strongest  point  of  view,  they  have  not 
made  out  a  case  in  which  a  Court  of  chancer}^  can  inter- 
pose. If  their  character  as  sureties  would,  under  the  cir-. 
cumstances  of  the  case,  entitle  them  to  any  particular  in- 
dulgence; and  if  they  did  not  employ  counsel  to  defend 
the  suit  at  law,  and  are  not  bound  by  the  acts  of  their  co- 
defendants,  who  perhaps  employed  counsel  in  their  be- 
lialf;  and  if,  as  they  insinuate  b}^  their  witness,  the  era- 
sure was  made  by  the  appellant,  or  with  her  knowledge 
and  consent;    still  their  claim  to  relief  in  equity  is  un- 

(318) 


MAY  TERM,  1829.  271-272 


Sheimire  v.  Thompson  and  Others. 


founded.  Their  right  to  bar  a  recovery  on  this  note  on 
account  of  the  erasure  of  Johnson's  signature  is  purely  le- 
gal ;  and,  except  as  to  Johnson's  proportion  of  the  amount 
of  the  note,  it  exists  in  law  without  a  shadow  of. 
[*272]  equity.  But  even  if  this  judgment  were  ^^contrary 
to  equity,  the  reasons  assigned  for  not  defending 
at  law,  are  wholly  insufficient  to  authorize  the  relief  re- 
quired. A  Court  of  chancery  will  not  relieve  against  a 
judgment  contrary  to  equity,  unless  the  defendant  in  the 
judgment  was  ignorant  of  the  fact  in  question  pending 
the  suit  at  law,  or  it  could  not  have  been  received  as  a 
defence,  or  unless  he  was  prevented  from  availing  him- 
self of  the  defence  by  fraud,  or  accident,  or  the  act  of  the 
0[)posite  party,  unmixed  with  negligence  or  fault  on  his 
part.  The  cases  which  support  this  principle  are  numer- 
ous. We  will  only  mention  Cowan  v.  Price,  1  Bibb,  173; 
Lansing  v.  Eddy,  1  Johns.  Ch.  E.  49;  Duncan  v.  Lyon,  3 
Johns.  Ch.  R.  351 ;  Foster  v.  Wood,  6  Johns.  Ch.  R.  87.  In 
this  case  nothing  is  alleged,  as  a  reason  for  not  defending 
at  law,  but  ignorance  of  the  erasure.  There  is  nothing 
to  excuse  this  ignorance.  It  was  occasioned  by  negli- 
gence alone.  And  we  know  of  no  principle  or  precedent 
that  authorizes  relief.  The  decree  must  be  reversed  and 
the  bill  dismissed. 

Per  Curiam. — The  decree  is  reversed  with  costs.  Cause 
remanded,  with  directions  to  the  Circuit  Court  to  dismiss 
the  bill,  &c. 

Law  and  Kinney,  for  the  appellant. 

Judah  and  Dewey,  for  the  appellees. 


END  OF  MAY  TERM,  1829. 


(319) 


[*273]  *  CASES 

ARGUED  AXD  DETERMIN"ED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE  OF  INDIANA, 


AT  INDIANAPOLIS,   NOVEMBER  TERM,    1829,    IN  THE  FOURTEENTH   YEAR  OF 

THE   STATE. 


Dougherty  v.  Humpston,  on  Appeal. 

Specific  Performance — Discretion — Equity  Practice  (a). 

A.  SOLD  to  B.  a  tract  of  land,  and  gave  him  a  title- 
bond  conditioned  for  the  execution  of  a  deed  for  the  land, 
when  a  patent  for  the  same  should  be  obtained  from  the 
United  States.  A.  had  paid  to  the  United  States  one- 
fourth  of  the  purchase-money.  B.  executed  his  notes  to 
A.  for  the  price  of  the  land,  payable  part  in  labor  and 
part  in  money,  and  agreed  to  complete  the  payments  due 
to  the  United  States  on  the  land.  A.  afterwards  assigned 
the  land-ofRce  certificate  for  the  land  to  C,  who  had 
notice  of  B.'s  title-bond;  and  C.  paid  the  balance  of  the 
purchase-money  due  to  the  United  States,  and  obtained  a 
patent  for  the  land.  B.  filed  a  bill  iii  chancery  against 
C,  setting  out  the  above  facts;  averring  a  performance 
of  the  labor,  and  a  payment  of  part  of  the  money  payable 

(«)   6  Ind.  259. 

(320) 


NOVEMBER  TERM,  1829.  273-2T4 

Sheets  v.  Andrews. 

to  A.;  and  praying  for  a  conveyance  of  the  land.  Held, 
that  as  the  bill  did  not  show  a  payment  or  tender  of  all 
the  money  payable  to  A.  by  the  contract,  and  a  payment 
or  tender  to  C.  of  the  balance  of  the  purchase-money 
paid  by  him  to  the  United  States,  it  should  be  dismissed 
for  want  of  equity. 

A  bill  for  a  specific  performance  of  a  contract, 
[*274]    is  addressed  *to  the  discretion  of  the  Court;  and 
it  should  always  show  that  the  complainant  had 
done  all  which  could  be  equitably  required  of  him. 

When  a  conveyance  is  decreed  to  be  executed  in  such  a 
case,  the  usual  form  is,  to  require  the  person  who  has  the 
legal  title  to  execute  the  conveyance,  if  he  is  of  legal  dis- 
cretion and  within  the  jurisdiction  of  the  Court. 


Sheets  v.  Andrews. 


Contract — Performance — Demand. — If  the  owner  of  real  estate  covenant 
to  make  a  title  to  it  on  payment  of  the  purchase-money,  and  the  same  be 
afterwards  paid,  the  obligor  is  not  liable  to  an  action  for  not  conveying, 
unless  the  deed  have  been  previously  demanded. 

Qucere,  whether  the  purchaser,  in  such  case,  should  tender  the  de^d  to  the 
vendor  for  execution. 

Warranty — Breach — Damage. — In  the  case  of  a  breach  of  the  covenant 
of  seisin,  or  of  warranty,  contained  in  a  conveyance  of  real  estate,  or  of  a 
breach  of  a  covenant  to  convey,  the  measure  of  damages,  if  there  be  no 
fraud,  is  the  purchase-money  with  interest  (a). 

APPEAL  from  the  Jefferson  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  covenant,  by  An- 
drews against  Sheets,  on  the  following  obligation:  "I 
hereby  promise  and  oblige  myself,  my  heirs  or  legal  rep- 
resentatives, to  convey  unto  Stephen  Andrews,  his  heirs 
or  assigns,  by  general  warranty  deed  of  conveyance,  lots 
numbered  96,  97,  101,  129  and  130,  in  the  additional  plat 
of  the  town  of  Vevay,  Indiana,  on  or  before  the  3d  of 

(a)  7  Ind  450. 

YoL  II.— 21  (321) 


274-275    SUPREME  COURT  OF  INDIANA. 

Sheets  v.  Andrews. 

May,  1820,  or  so  soon  thereafter  as  payment  shall  be 
made  in  full  for  said  lots,  agreeably  to  three  several  notes 
given  for  the  same,  bearing  even  date  with  these  presents 
at  six,  twelve,  and  eighteen  months,  with  interest  from 
the  date  if  not  punctually  paid.  Given  under  my  hand 
and  seal  the  3d  day  of  November,  1818. — John  Sheets, 
(Seal)."  The  declaration  avers  payment  of  the  purchase- 
money  on  a  certain  day,  before  the  commencement  of  the 
suit;  and  alleges  that  the  defendant,  although  often  re- 
quested, had  not  made  the  conveyance.  To  this  action, 
Sheets,  the  defendant  below,  after  obtaining  oyer  of  the 
obligation,  pleaded  several  pleas  in  bar;  one  of  which  is 
to  the  following  effect: — That  the  defendant  had  been 
always  ready,  willing,  and  able  to  execute  the 
[*275]  ^conveyance  agreeably  to  his  covenant;  but  that 
the  plaintiff'  had  never  requested  him  to  do  so. 
This  plea  further  states  that  the  defendant  was  still  ready, 
able,  and  willing  to  execute  the  conveyance;  and  that  he 
had  brought  it  into  Court  and  then  tendered  it  to  the 
plaintiff"  for  his  acceptance.  To  this  plea,  as  well  as  to 
the  others,  Andrews,  the  plaintiff'  below,  demurred  gen- 
erally, and  the  defendant  joined  in  demurrer.  The  Cir- 
cuit Court,  considering  the  pleas  no  bar  to  the  action, 
gave  judgment  on  the  demurrer  in  favor  of  the  plaintiff' 
below.  The  damages  were  assessed  at  976  dollars  and  5 
cents,  being  the  amount  of  the  purchase-money  with  in- 
terest; and  final  judgment  was  rendered  for  that  aYnount, 
together  with  costs.  Sheets,  the  defendant  below,  appeals 
to  this  Court. 

The  validity  of  the  plea,  to  which  we  have  referred, 
depends  upon  a  single  question.  It  is  this:  If  the  owner 
of  real  estate  covenant  to  make  a  title  to  it,  on  "payment 
of  the  purchase-money,  and  the  same  be  afterwards  paid, 
is  the  obligor  liable  to  an  action  for  not  conveying,  al- 
though the  deed  has  not  been  demanded?  The  Court 
has  heretofore  expressed  an  opinion,  that,  in  cases  of  this 
kind,  the  plaintiff"  might  recover  without  any  proof  of 

(322) 


NOVEMBER  TERM,  1829.  275-276 

Sheets  v.  Andrews. 

such  a  demand.  We  have,  however,  for  some  thiie,  had 
doubts  as  to  the  correctness  of  that  opinion  ;  and  have 
now,  after  much  reflection,  come  to  the  conclusion  that  it 
must  be  overruled.  It  appears  to  us  to  be  reasonable, 
that  the  parties  to  these  contracts,  which  are  very  com- 
mon in  our  country,  should  each  have  a  fair  opportunity 
to  perform  his  part,  previously  to  his  being  liable  to  a  suit 
for  the  non-performance. 

The  statute  of  1824,  pp.  329,  330,  rendering  bonds  like 
the  present,  usually  called  title-bonds,  assignable,  furnishes 
a  strong  reason,  were  there  no  other,  to  show  that  the 
bona  fide  obligor  in  these  cases,  having  a  good  title,  should 
not  be  subject  to  a  suit  for  not  conveying,  until  he  had 
been  called  upon  for  the  deed.  The  title-bond,  by  means 
of  assignments,  may,  and  frequently  does,  pass  through 
the  hands  of  many  persons,  before  the  payment  of  the 
purchase-money  by  the  obligee,  according  to  his  contract. 
It  must,  consequently,  often  happen,  that  neither  the  ob- 
ligor nor  obligee,  at  the  time  of  the  payment,  can  know 
who  has  the  bond  and  is  entitled  to  the  conveyance.  In 
cases  so  situated,  if  no  previous  demand  of  the  deed  bo 

necessary,  the  obligor  may  have  no  opportunity 
[*276]    *to  prevent  an  action  founded  on  a  breach  of  hia 

contract,  notwithstanding  he  may  have  been  al 
ways  ready,  and  able,  and  anxious,  to  perform  it.  The 
consequence  would  be  that  the  holder  of  the  bond,  not 
being  known  to  the  obligor,  might  keep  it  until  the  prop- 
erty had  become  greatly  reduced  in  value,  and  then  re- 
cover damages  to  the  whole  amount  of  the  purchase- 
money  and  interest,  without  the  obligor's  having  had  any 
opportunity  to  prevent  it,  by  a  compliance  with  his  agree- 
ment. In  this  way,  the  holder  of  the  bond  could  take 
advantage  of  his  own  wrong,  to  the  injury  of  a  bona  fide 
vendor.  To  avoid  this  dithculty,  Andrews,  the  defe'ndant 
in  error,  contends  that  the  obligor  might  tender  the  deed 
to  the  obligee,  at  any  time  before  notice  of  the  assign- 
ment; which  tender  would  be  as  effectual  as  if  it  were 

(323) 


276-277    SUPliEME  COURT  OF  mDIANA. 

Sheets  V.  Andrews. 

made  to  the  holder  of  the  bond.  The  answer  to  this  is, 
that  the  obligee  would  always  have  it  in  his  power  to  pre- 
vent the  eifect  of  the  tender,  by  merely  informing  the  ob- 
ligor at  the  time — as  it  would  be  his  duty  to  do — that  the 
bond  had  been  previously  assigned. 

Independently,  however,  of  the  statute,  making  title- 
bonds  assignable,  the  rule  which  requires  that  the  deed 
be  denumded  in  these  cases,  before  the  commencement  of 
a  suit  for  not  executing  it,  appears  to  us  to  be  proper  and 
necessary.  It  is  best  calculated  to  secure  the  specific  ex- 
ecution of  contracts,  and  to  prevent  a  multiplicity  of  law 
suits.  Besides,  it  maybe  often  a  convenience  to  the  pur- 
chaser, for  a  variety  of  reasons,  not  to  receive  the  title  as 
soon  as  he  is  entitled  to  it;  and  he  may  therefore  prefer 
its  continuance,  for  some  time,  in  the  vendor.  If  he  can 
obtain  the  title  to  which  he  has  a  right,  whenever  he  may 
choose  to  demand  it,  he  ought  not  to  complain.  There 
is,  indeed,  respectable  authority  for  the  opinion  that  it 
would  have  been  better  had  the  law  required  a  demand 
previously  to  a  suit,  even  in  cases  where  money  only  has 
been  contracted  for.  The  law,  it  is  true,  as  to  that  haa 
long  been  settled  to  be  otherwise.  But  the  fact  that  its 
policy  has  been  thus  questioned  where  money  alone  is  to 
be  paid,  is  a  strong  ground  to  show  that  the  rule  dispens- 
ing with  any  demand  upon  the  obligor  for  performance, 
before  a  suit  against  him  for  non-performance,  should  not 
be  applied  but  with  great  caution  to  any  other  contracts 
than  those  for  the  payment  of  money.  We  are  now  well 
satisfied  that  it  should  not  be  extended  to  cov- 
L*277]  enants,  like  the  *one  under  consideration,  for  the 
conveyance  of  land.  An  eminent  English  writer 
upon  this  subject  says:  "A  vendor  can  not  bring  an  ac- 
tion for  the  purchase-money,  without  having  executed  the 
conveyance,  or  offered  to  do  so,  unless  the  purchaser  has 
discharged  him  from  so  doing.  And,  on  the  other  hand, 
a  jMirchaser  can  not  maintain  an  action  for  breach  of  con- 
tract, without  having  tendered  a  conveyance  and  the  pur- 

(324) 


NOVEMBER  TERM,  1829.  277 


Sheets  v.  Andrews, 


chase-mouey."  Sugdeii  on  V^eiidors,  pages  162,  163.  We 
are  not  now  called  on  for  an  opinion  as  to  whether  the 
purchaser  should  pursue  the  English  practice  by  not  oul}' 
demanding  the  conveyance,  but  also  by  tendering  it  for 
execution.  It  is  sufficient  for  the  present  purpose  to  say 
that  this  suit  could  not  be  maintained,  unless,  previously 
to  its  commencement,  the  deed  had  been  demanded. 

Upon  this  view  of  the  subject,  the  plea  to  which  we 
have  particularly  referred,  denying  that  any  demand  of 
the  deed  had  been  made,  is  a  bar- to  the  action.  The 
contrary  opinion  heretofore  expressed  in  Deming  v.  Bul- 
litt, Cunningham  v.  Fiinn,  and  Aiidrews  v.  Sheets,  is,  of 
course,  overruled  (1). 

With  respect  to  the  question  which  has  been  raised  in 
this  cause,  relative  to  the  measure  of  damages,  the  opin- 
ion of  the  Circuit  Court  is  considered  to  be  correct.  The 
same  opinion  was  expressed  by  this  Court  at  the  Ma}' 
term,  1828,  in  the  case  oi  Blackwell  v.  The  Board  of  Jus- 
tices of  Lawrence  County  (2).  It  appears  to  us  that  where 
no  fraud  is  alleged,  the  purchase-money,  with  interest, 
should  be  the  measure  of  damages,  whether  the  breach 
complained  of  be  of  the  covenant  of  seisin  or  of  warrantv 
contained  in  a  conveyance,  or  whether  it  be,  as  in  the 
present  case,  of  a  covenant  to  convey. 

The  judgment,  however,  must  be  reversed  upon  the 
lirst  objection  taken  by  the  plaintiff  in  error;  and  which 
we  have  already  examined.  The  plea  in  denial  of  the 
demand  being  good,  the  demurrer  to  it  was  erroneously 
sustained. 

Per  Curiam. — The  judgment  is  reversed,  and  the  pro- 
ceedings subsequent  to  the  joinder  in  demurrer,  are  set 
aside,  with  costs.  Cause  remanded,  with  directions  to 
permit  the  plaintiff"  below  to  withdraw  his  demurrer  and 
reply  to  the  plea. 

Stevens,  for  the  appellant, 
Jloirk'Und  Sullivan,  for  the  appellee. 

(325) 


278  SUPREME  COURT  OF  INDIANA. 


Weathers  r.  The  State. 


[*278]  (1)  *Au  action  of  covenant  was  brought  by  a  vendee  against  a 
vendor  of  real  estate.  The  covenant  on  which  the  suit  was  found- 
ed, was,  that  the  vendor,  in  consideration  of  a  certain  sum  paid  to  him, 
would  convey  to  the  vendee,  at  a  certain  time,  a  certain  tract  of  land.  Plea, 
that  the  defendant  had  not  been  requested  to  convey,  &c.  Demurrer  to  the 
plea.  Per  Curiam. — On  the  merits,  it  is  impossible  to  distinguish  this  case 
from  Fidler  v.  Hubbard,  6  Cowen,  13,  and  Hackett  v.  Huson,  3  Wendell,  250. 
In  the  latter  case,  particularly,  the  consideration  had  been  paid,  as  in  this 
case,  and  the  conveyance  was  to  be  executed  by  a  jjarticular  day;  but  the 
same  rule  was  held  applicable,  which  had  been  previously  applied,  when 
the  payment  of  the  consideration  and  the  giving  of  the  deed  were  to  be  sim- 
ultaneous acts.  It  may  be  considered  the  rule  of  this  Court,  that  when  a 
party  covenants  to  convey,  he  is  not  in  default  until  the  party  who  is  to  re- 
ceive the  conveyance,  being  entitled  thereto,  has  demanded  it,  and  having 
waited  a  reasonable  time  to  have  it  drawn  and  executed,  has  made  a  second 
demand.  In  England,  the  party  entitled  to  the  deed  is  bound  to  have  it 
drawn  and  presented  for  execution.  We  have  not  gone  .so  far.  The  party 
who  is  to  give  a  deed,  certainly  should  have  it  drawn  at  his  own  expense; 
but  upon  such  a  covenant  as  that  declared  on  in  this  ca.se,  the  covenantor 
is  not  bound  to  prepare  the  conveyance  until  it  is  demanded,  when  it  is  his 
duty  to  execute  and  perfect  the  conveyance  with  all  reasonable  dispatch, 
and  hold  it  ready  for  delivery  when  called  for.  The  purchaser,  no  doubt, 
may  pi'epare  tlie  deed  and  tender  it  for  execution,  and  then  but  one  demand 
is  necessary.     Connelly  v.  Pierce,  7  Wend.  129. 

A  purchaser  is  not  bound  to  prepare  and  tender  a  deed  to  the  vendor, 
unless  such  an  obligation  can  be  inferred  from  the  terms  of  the  contract. 
Fairfax  v.  Lewis,  2  Rand.  20. 

(2)  Ante,  p.  143.  On  the  ancient  writ  of  tvarrantia  chartie,  the  feoffee,  in 
case  of  eviction,  only  recovered  other  lands  as  valuable  as  those,  from  which 
he  was  evicted,  were  at  the  date  of  the  warranty.  The  personal  covenants 
in  a  conveyance — of  seisin,  of  right  to  convey,  against  incumbrances,  of 
quiet  enjoyment,  and  of  warranty — were  introduced  in  the  place  of  the 
ancient  warranty.  And  it  has  been  generally  considered,  that  the  measure 
of  damages  for  a  breach  of  any  of  the  substituted  covenants,  should  be 
eimilar  to  that  which  existed  for  a  breach  of  the  original  one.  Chancellor 
Kent  examines  this  subject  and  refers  to  the  principal  authorities.  He 
concludes  as  follows  :  "The  ultimate  extent  of  the  vendor's  responsibility, 
under  all  or  any  of  the  usual  covenants  in  his  deed,  is  the  purchase-money 
with  interest,  and  this  I  presume  to  be  the  prevalent  rule  throughout  the 
United  States."    4  Kent's  Comm.  2d  Ed.  476. 


Weathers  v.  The  State. 

■pERJUKY — Materia.!.  ]\Iatter — Indictment. — An  indictment  for  perjury 
must  .show  conclusively,  that  the  testimony  given  by  the  defendant,  and 
charged  to  be  false,  was  material  to  the  issue  on  the  trial  of  which  he  was 
.sworn. 


ERROR  to  the  Ripley  Circuit  Court. 

(326) 


NOVEMBER  TERM,  1829.  2Tb-2T<J 

Weathers  v.  The  State. 

HoLMAN,  J. — William  Weathers  was  indicted  for  per- 
jury in  the  Ripley  Circuit  Court.  The  indict- 
[*279]  ment  states  that  on  the  *27th  of  October,  in  the 
year  1828,  on  the  trial  of  a  certain  issue,  in  the 
Ripley  Circuit  Court,  wherein  Gardner  Woodburj-  was 
plaintiiF,  and  Daniel  Ross,  Samuel  Hodges  and  Reuben 
Hodges  were  defendants,  duly  joined  on  the  plea  of  pay- 
ment to  a  certain  note  in  writing  under  seal,  regularly 
executed  by  the  said  defendants,  William  Weathers  ap- 
peared as  a  witness  for  the  defendants,  and  took  his  cor- 
poral oath,  &c.,  to  speak  the  truth,  &c.,  touching  the  mat- 
ters in  question  in  the  issue  joined  as  aforesaid;  that,  on 
the  trial  of  the  said  issue,  certain  questions  became  and 
were  material,  that  is  to  say,  whether  he,  the  said  William 
Weathers,  had  paid  one  Robert  Knowlton,  the  assignor 
of  the  said  plaintiff,  before  the  assignment  of  the  said 
note,  the  sum  of  73  dollars,  for  the  defendants  aforesaid; 
and  that  the  said  William  Weathers,  on  the  said  27th  of 
October,  in  the  year  1828,  in  the  said  Ripley  Circuit 
Court,  on  his  oath  aforesaid,  on  the  issue  aforesaid,  know- 
ingly, falsely,  &c.,  amongst  other  things,  did  depose  and 
swear,  that  he,  the  said  William  Weathers,  had,  before 
that  time,  paid  to  the  said  Robert  Knowlton,  the  assignor 
of  the  said  note,  the  sum  of  73  dollars,  on  the  said  note, 
for  the  said  defendants;  whereas  in  truth  and  in  fact,  the 
said  William  Weathers,  at  the  time  when  he  so  swore  as 
aforesaid,  had  not  before  the  time  when  he  so  swore  as 
aforesaid,  nor  before  the  assignment  of  the  said  note  to 
the  said  plaintiff  in  the  action  aforesaid,  nor  at  any  other 
time,  paid  the  said  Robert  Knowlton  the  said  sum  of  73 
dollars,  nor  any  other  sum  of  money  on  the  said  note. 
On  this  indictment  AYeathers  was  found  guilty  by  a  jury, 
who  assessed  his  fine  at  50  dollars,  and  found  that  he 
should  be  imprisoned  in  the  prison  of  the  state  for  one 
year.  Motion  in  arrest  of  judgment  overruled,  and  judg- 
ment given  on  the  verdict.  To  reverse  this  judgment 
Weathers  has  prosecuted  his  writ  of  error. 

(327) 


279-280   SUPREME  COURT  OF  INDIANA. 

Weatheis  v.  The  State. 

This  judgment  can  not  be  sustained:  it  should  have 
been  arrested  by  the  Circuit  Court.  The  indictment  is 
insufficient,  inasmuch  as  it  does  not  show  conclusively 
that  the  testimony  given  by  Weathers  was  material  to  the 
issue  between  Gardner  Woodbury,  plaintiff,  and  Daniel 
Ross,  Samuel  Hodges,  and  Reuben  Hodges,  defendants. 
The  facts  sworn  to  must  be  material,  in  order  to  consti- 
tute the  crime  of  perjury.  A  man  may  knowingly  and 
corruptly  swear  falsely,  and  3^et  not  be  guilty  of  perjury. 

And  the  indictment,  in  order  to  allege  the  crime 
[*280]    of  ^perjury,   must    unequivocally  aver   that   the 

facts  sworn  to  were  material.  Nothing  is  to  be 
taken  by  intendment.  Here  the  indictment  says,  that  it 
was  material  whether  Weathers  had  paid  73  dollars  to 
Knowlton,  for  the  defendants,  before  the  assignment  of 
the  note.  '  Now,  if  the  indictment  had  stated  that  Weath- 
ers swore  that  he  had  paid  73  dollars  to  Knowlton  before 
the  assignment  of  the  note,  the  testimony  would  have 
been  material  within  the  terms  of  the  indictment.  But 
such  was  not  the  testimony  of  Weathers.  He  did  not 
swear,  as  we  understand  the  expressions  in  the  indict^ 
ment,  that  he  paid  the  money  to  Knowlton  before  the  as- 
signment of  the  note,  but  that  he  had  paitl  the  money 
before  that  time — the  time  when  he  gave  his  evidence. 

The  indictment  does  not  say  that  the  question  whether 
Weathers  paid  the  money  to  Knowlton  after  the  assign- 
ment of  the  note  was  material;  nor  does  it  charge  that  he 
swore  that  he  paid  it  before  the  assignment;  therefore 
the  deduction  is  clear,  that  the  swearing  may  have  been 
to  a  fact  that  the  indictment  does  not  allege  to  have  been 
material.  If  the  allegation  of  materiality  in  the  indict- 
ment is  not  sufficiently  broad  to  cover  the  facts  sworn  to 
by  the  Jofcndant,  it  is  just  the  same  as  if  the  indictment 
contained  no  allegation  of  the  materiality  of  the  facts 
sworn  to  at  all.  And  surely  no  lawyer  would  contend 
that  an  indictment  would  be  good  without  an  allegarion 
that  the  facts,  to  which  the  defendant  deposed,  were  ma- 

(328) 


NOVEMBER  TERM,  1829.  280-281 

Weathers  v.  The  State. 

terial.  It  therefore  appears  to  us  that,  if  we  take  the 
whole  of  the  indictment  as  true,  it  does  not  iix  upon  the 
defendant  the  charge  of  perjury;  for  if  the  question  of  a 
payment  to  Knowlton,  at  any  time  subsequent  to  the  as- 
signment of  the  note,  was  not  material,  the  swearing  of 
Weathers,  though  false,  may  not  have  amounted  to  per- 
jury. In  fixing  this  conclusion  it  must  be  remembered 
that  the  indictment  does  not  pretend  that  the  time  when 
the  note  was  assigned,  and  the  time  when  Weathers  gave 
this  evidence  was  the  same;  and  in  the  very  nature  of 
the  transactions,  some  time  must  have  elapsed  after  the 
assignment  of  the  note  before  the  defendant  gave  this  evi- 
dence relative  to  this  payment ;  and  a  question  of  payment, 
during  this  interval  of  time,  is  not  said  by  the  indict- 
ment to  have  been  material ;  and  for  aught  that  ap- 
[*281]  pears  in  the  indictment,  it  may  have  been  in  *this 
interval  of  time,  when  the  defendant  swears  that 
he  paid  the  money  to  Knowlton. 

The  attorney  for  the  state  supposes  that  the  averment 
in  the  indictment  that  Weathers  had  not,  before  the  time 
when  he  so  swore,  nor  before  the  assignment  of  the  said 
note,  paid  the  said  73  dollars,  removes  this  objection.  But 
an  averment  that  Weathers  had  not  paid  the  money  be- 
fore the  assignment  of  the  note,  does  not  reach  or  limit 
the  general  terms  of  the  swearing  as  to  the  time  of  pa}-- 
ment.  ]S"or  does  the  general  averment  that  Weathers  had 
not  paid  the  money  at  any  time  before  he  gave  this  evi- 
dence, show  that  a  question  as  to  a  payment  at  any  time 
was  material.  It  may  be  considered  as  showing  that 
Weathers  has  certainly  sworn  falsely,  but  it  does  not  reach 
the  materiality  of  the  facts  sworn  to,  so  as  to  show  that  a 
perjury  had  been  committed. 

There  are  other  errors  assigned  that  would  demand  our 
attention,  if  the  one  already  examined  did  not  show,  con- 
clusively, that  the  indietnient  is  materially  defective,  and 
that  the  judgment  must  be  wholly  reversed. 

(329) 


281-282    SUPREME  COURT  OF  INDIANA. 

Pegg  I'.  Davis. 

Per  Curiam. — The  judgment  is  reversed.     To  be  certi- 
fied &c. 

Stevens,  for  the  plaintitf. 
Wick,  for  the  state. 


Pegg  v.  Davis. 

Pleadings — Equity — Exceptions  and  Answers. — If  exeeptions  be  taken 
to  some  parts  of  an  answer  in  chancery,  and  the  Court  consider  the  ex- 
ceptions valid,  the  defendant  may  be  ordered  to  answer  over  so  far  as  the 
exceptions  extend,  but  he  can  not  be  required  to  answer  over  generally. 

Same. — If  the  answer  to  any  particular  charge  in  a  bill  be  not  sufficiently 
explicit,  the  complainant  should  file  exceptions  to  that  part  of  the  answer  ; 
but  if  instead  of  doing  that,  be  acquiesce  in  the  answer,  the  charge  must  be 
proved  or  it  will  be  disallowed. 

Equity  Practice — Formation  of  Issues. — If  any  particular  claim  in  a 
bill  be  not  answered,  the  complainant  should  insist  on  an  answer,  and  if 
such  answer  be  refused,  he  may  take  a  decree  pro  tantohy  confession  ;  and 
then,  if  the  charge  is  sufficiently  explicit,  it  may  be  recovered  without 
further  proof.  But  should  the  complainant,  instead  of  pursuing  that 
course,  bring  the  case  to  a  hearing  on  the  merits,  he  can  only  entitle 
himself  to  the  claim  by  proving  it. 

Same — Deed  Pro  Confesso. — If  the  charge  in  a  bill  be  not  stated  with 
sufficient  certainty,  the  complainant  can  not,  even  after  a  decree  pro 
confesso,  have  a  final  decree,  unless  he  establish  his  demand  by  satisfactory 
evidence  (a). 

[*282]    *ERROR  to  the  Franklin  Circuit  Court. 

Blackford,  J. — In  October,  1822,  Pegg  tiled  a  bill  in 
chancery  in  the  Franklin  Circuit  Court  against  Davis; 
and,  in  October,  1823,  he  filed  an  amended  bill.  By  these 
bills  it  appears  that  the  complainant  and  defendant  had 
been  partners  in  business  at  Brook ville,  as  merchants  and 
manufacturers.  It  is  also  shown  that  they  had  made  a 
final  settlement  of  their  partnership  concerns,  and  had 
dissolved  their  partnership.  The  object  of  the  suit  was, 
among  other  things,  that  the  settlement  of  the  partner- 

(«)  4  Ind.  149. 

(330) 


N()\^KM1'>EK  TERM,  1829.  282-283 


Pegff  I'.  Davis. 


ship  accounts  should  be  opened,  in  consequence  of  fraud; 
and  that  Davis  shoukl  be  compelled  to  account  for  part- 
nership funds,  fraudulently  applied  by  him  to  his  own  use. 
In  January,  1824,  Davis  tiled  his  answer;  and,  in  Febru- 
ary following,  he  filed  a  cross-bill.  In  May,  1824,  Pegg, 
the  complainant  in  the  original  bill,  filed  his  answer  to 
the  cross-bill.  In  July  and  August,  1824,  several  deposi- 
tions were  taken  in  the  cause.  In  September  following, 
Davis  filed  an  amended  cross-bill ;  which  was  answered 
by  Pegg.  The  latter  also  filed  a  supplemental  bill ;  which, 
in  March,  1825,  was  answered  by  Davis.  At  the  March 
term,  1825,  Davis  filed  exceptions  to  Pegg's  answers  to 
the  cross-bill  and  amended  cross-bill.  And  the  Court, 
during  the  same  term,  made  the  following  order :  "  On 
motion,  the  defendant,  John  Pegg,  is  ruled  to  answer  over 
to  complainant's  cross-bill  in  90  days,  or  decree  to  be  en- 
tered thereon  at  the  next  term  of  this  Court."  The  next 
proceeding  in  this  cause  was  the  following  order  of  refer- 
ence, made  at  the  September  term,  1825 :  "On  motion, 
this  cause  is  referred  io  the  master  in  chancery  for  a  set- 
tlement of  accounts  between  the  said  parties ;  who  is  re- 
([uired  to  report  to  the  next  term  of  this  Court."  At  tlie 
September  term,  1826,  the  master  reported  that  there  was 
a  balance  due  to  Davis,  the  defendant  in  the  original  suit, 
of  2,958  dollars.  During  the  same  term,  no  objection  being 
made  to  the  report,  and  the  bills,  answers,  depositions,  and 
exhibits,  in  the  cause,  having  been  examined  bythe  Court, 
there  was  a  final  decree  made  that  Davis  recover  the  said 
sum  of  2,958  dollars,  found  and  reported  by  the  master 
in  manner  aforesaid,  together  with  costs. 

Pegg,  the  complainant  below  in  the  original  suit,  ap- 
peals to  this  Court. 

The  general  order,  made  by  the  Circuit  Court  at  the 
[*283]    March  *term,  1825,  that  Pegg  should  answer  over 

to  the  cross-bill  of  Davis,  was  incorrect.  There 
are  material  parts  of  Pegg's  answer  to  the  cross-l)ill,  to 
which  Davis  took  no  exception.     Supposino-,  therefore, 

(331) 


283  SUPREME  COUET  OF  INDIANA. 

Pegg  r.  Davis. 

that  all  the  exceptions  are  valid,  it  is  clear  that  Pegg 
could  not  be  required  to  answer  over  to  the  whole  bill,  but 
oidy  so  far  as  the  exceptions  to  his  answer  extended.  It 
is  not  necessary,  however,  to  dwell  upon  this  part  of  the 
case.  This  irregular  order  produced  no  injury  to  Pegg, 
the  plaintift' in  error,  of  which  he  can  complain.  No  ettbrt 
was  made  to  enforce  it.  It  remained  a  dead  letter,  not 
noticed  either  by  the  parties  or  by  the  Court.  Davis  may 
be  considered  as  having  abandoned  the  order,  together 
with  the  exceptions  which  it  was  intended  to  sustain. 
We  shall  consider  the  case,  therefore,  as  if  there  had  been 
no  order  upon  Pegg  to  answer  over,  nor  any  exceptions 
to  his  answer. 

The  master's  report  contains  a  long  statement  of  the  ac- 
counts between  the  parties.  The  two  principal  charges 
allowed  by  the  master  against  Pegg  are,  one  of  2,000 
dollars,  the  other  of  800  dollars.  The  following  is  a  copy 
of  the  entry  of  these  charges  in  the  master's  report:  "To 
this  amount  of  cash  notes  on  hand,  at  the  time  of  the  dis- 
solution of  the  partnership,  which  he,  Pegg,  is  charged 
with  having  secreted  ;  and  his  answer  appears  to  be  vague 
and  uncertain — 2,000  dollars.  To  this  amount  in  cash  on 
hand,  at  the  time  of  the  dissolution  of  the  partnership  ;  to 
which  the  answer  is  vague  and  uncertain — 800  dollars." 
The  record  contains  no  proof  of  either  of  those  charges. 
They  were  allowed  by  the  master,  as  he  himself  particu- 
larly states,  merely  because  they  are  contained  in  the  bill, 
and  the  answer  to  them  is  vague  and  uncertain. 

The  statement  in  the  amended  cross-bill — and  it  appears 
nowhere  else — as  to  the  charge  of  2,000  dollars,  is  as  fol- 
lows: "At  the  time  of  the  dissolution  of  the  said  part- 
nership, as  your  orator  is  informed  and  believes,  the  said 
John  Pegg  had  cash  notes  to  a  large  amount,  say,  2,000 
dollars,  on  divers  individuals,  payable  to  the  said  firm  of 
Pegg  and  Davis;  and  which  had  been  given  by  said  per- 
pojis  on  contract  to  the  use  of  said  firm:  whicli  said  notes 
the  said  Pegg  at  that  time  secreted  and  kept  back,  and  has 

(332) 


NOVEMBER  TERM,  1829.  283-284 


Peofsr  c.  Davis. 


never  to  this  day  accouuted  to  your  orator  for  the  same. 

Some  of  which  said  notes,  the  said  Pegg  after- 
['''284]    wards  assigned  to  third  persons  on  his  own  *in- 

dividual  contracts."  The  answer  of  Pegg  to  this 
charge  is  as  follows :  "  This  defendant  says,  that  if,  at  the 
dissolution  aforesaid,  there  were  cash  notes  on  hand 
beh)nging  to  the  firm,  they  were  honestly  applied,  so  far 
as  this  defendant  was  concerned,  to  the  payment  of  part- 
nership debts;  not  a  cent  of  which  was  ever  applied  to  his 
own  individual  use  without  accounting  therefor."  In  this 
answer  of  Pegg,  there  is  certainly  no  admission  of  his  ever 
having  had  any  part  of  the  2,000  dollars  in  cash  notes, 
with  which  he  is  charged,  and  he  positively  denies  the 
appropriation  of  any  of  them  to  his  own  use  as  stated  in 
the  bill.  There  is  nothing,  therefore,  in  the  answer  to 
warrant  the  allowance  of  this  charge  of  2,000  dollars.  If 
the  answer  is  not  sufficiently  explicit,  Davis  should  have 
insisted  upon  his  exceptions  to  it.  That,  however,  as  we 
have  already  shown,  he  failed  to  do.  By  acquiescing  in 
the  answer,  he  rested  the  fate  of  this  charge  upon  the  proof 
he  might  be  able  to  adduce.  But  he  produced  no  evidence 
to  support  it,  and  consequently,  had  no  right  to  the  allow- 
ance. 

The  other  item  of  800  dollars  is  charged  in  the  amend- 
ed cross-bill  as  follows:  "At  the  time  the  said  partner- 
ship was  dissolved  as  aforesaid,  the  said  plaintiff  had  on 
hand  a  large  sum  of  money,  as  your  orator  is  informed 
and  believes,  belonging  to  said  firm,  which  he  fails  to  ac- 
count for,  or  pay  over  to  your  orator."  To  this  claim  of 
800  dollars,  the  answer  contains  no  particular  notice. 
Whether,  on  account  of  the  generality  of  the  charge — no 
particular  sum  being  mentioned — Pegg  was  authorized  to 
pass  it  over  in  silence,  is  not  now  the  question.  It  was 
the  business  of  Davis,  to  insist  upon  an  answer  to  this  part 
of  his  bill,  if  he  had  a  right  to  it;  and,  if  the  answer 
were  refused,  to  take  a  decree  joro  ta.nfo  by  confession. 
Then,  if  the  charge  is  sufficiently  explicit,  he  might  have 

(333) 


284-285     SUPREME  COURT  OF  INDIAN^A. 

Pegg  ( .  Davis. 

recovered  it  without  the  production  of  proof.  That  course, 
however,  was  not  pursued.  The  case  was  brought  to  a 
liearing  on  the  merits ;  and  Davis  could  entitle  himself  to 
tins  charge  of  800  dollars  in  no  other  way  than  by  prov- 
ing it.  That  he  failed  to  do;  and  the  allowance,  there- 
fore, should  not  have  been  made. 

There  is  another  view  which  may  be  taken  of  this  sul)- 
ject.  Admitting  the  order  of  the  Court,  requiring  Pegg 
to  answer  over  generally,  to  be  correct;  and  supposing 
that,  for  the  want  of  such  answer,  there  had  been 
[*285]  a  decree  against  him,  pro  confesso ;  *even  under 
those  circumstances,  Davis  could  not  have  recov- 
ered, without  proof,  either  the  charge  of  2,000  dollars,  or 
that  of  800  dollars.  The  reason  is,  there  is  too  much  un- 
certainty in  the  statement  of  these  charges  in  the  bill. 
The  first  is,  "of  cash  notes  to  a  large  amount,  say  2,000 
dollars."  Here,  by  the  insertion  of  the  word  say,  the 
amount  is  rendered  altogether  uncertain.  The  second  is, 
"  of  a  large  sum  of  money  ; "  without  the  slightest  refer- 
ence to  any  definite  amount.  In  such  cases  of  uncertainty 
as  to  the  allegations  in  a  bill,  the  complainant,  even  after 
a  decree  pro  confesso,  can  have  no  right  to  a  final  decree 
unless  he  establish  his  demands  by  satisfactory  evidence. 
This  doctrine  was  lately  examined  by  the  Court  of  chan- 
cery in  New  York,  and  may  be  considered  as  settled. 
Williams  v.  Corwin,  1  Hopkins'  Rep.  471  (1). 

From  these  considerations  we  are  perfectly  satisfied  that 
the  decree  in  this  case  is  incorrect,  as  regards  the  two 
principal  items  of  the  account  allowed  against  Pegg.  It 
was  a  great  mistake  to  suppose  that  Davis  could  be  en- 
titled to  them,  independently  of  any  evidence,  merely  be- 
cause, in  the  language  of  the  master,  the  answer  respect- 
ing them  was  vague  and  uncertain. 

It  is  not  necessary  that  we  should  examine  any  further 
into  the  merits  of  this  decree.  It  is  evidently  erroneous, 
and  must  be  reversed.  It  has  also  been  shown  that  the 
orih^'  rorpiiring  a  new  ansAver  generallv  to  the  cross-bill 

(334) 


NOVEMBER  TERM,  1829.  285-28d 


Gordon  v.  Spencer. 


was  incorrectly  made:  that  order,  therefore,  with  the  sub- 
sequent proceedings,  must  be  likewise  set  aside.  The 
cause  must  be  remanded  to  the  Circuit  Court  for  further 
proceedings,  with  directions  to  permit  the  parties  to  amend 
their  bills'^  answers,  &c.,  and  to  take  further  evidence,  if 
they  think  proper. 

Per  Curiam.— The  decree  is  reversed,  &c.  Cause  re- 
manded, &c. 

Lcme  and  Fox,  for  the  plaintiff. 

Morris,  for  the  defendant. 

(1)  "  When  the  allegations  of  a  bill  are  distinct  and  positive,  and  the  bill 
is  confessed,  such  allegations  are  taken  as  true,  without  proot  ^^  here  the 
allegations  of  a  bill  are  indefinite,  or  the  demand  ot  the  complainant  is  in 
its  nature  uncertain,  the  certainty  requisite  to  a  proper  decree  must  be 
afforded  by  proofs."  Per  Sanfobd,  Chancellor,  in  Wdhams  v.  Corwm,  cited  in 
the  text.     Vide  Piatt  el  d.  v.  Judson,  May  term,  1833,  post. 


r*286]  ^Gordon  \j.  Spencer. 

Continuance— Practice— Absent  Witness.— If  the  continuance  of  a 
cause  be  applied  for,  on  the  ground  that  a  witness  who  had  been  sub- 
poenaed does  not  attend,  the  return  of  the  sheriflf  must  be  produced. 

Same.— An  affidavit  for  a  continuance,  on  account  of  the  absence  of  wit- 
ness, must  clearly  show  their  materiality. 

Slander— Evidence.— A  plaintiff  in  slander,  having  first  proved  that  the 
defendant  had  spoken  to  third  persons  the  words  laid  in  the  declaration, 
may  prove,  in  support  of  the  declaration,  that  the  defendant  had  spoken 
the  same  words  in  answer  to  the  plaintiff's  interrogatories. 

APPEAL  from  the  Franklin  Circuit  Court. 

HoLMAN,  J.— Alma  Spencer  obtained  a  verdict  and  judg- 
ment against  James  Gordon  in  an  action  of  slander.  Dur- 
ing the  progress  of  the  cause  the  defendant,  now  the  ap- 
petlant,  took  two  bills  of  exceptions,  and  has  appealed  to 
this  Court  for  a  reversal  of  the  judgment. 

The  first  bill  of  exceptions  states  that  the  defendant 
applied  to  the  Circuit  Court  for  a  continuance  of  the 
cause,  on  account  of  the  absence  of  four  witnesses;  stat- 

(335) 


286-287   SUPREME  COUKT  OF  INDIANA. 

Gordon  v.  Spencer. 

ing  in  an  affidavit  that  one  of  them,  who  resided  in  this 
state,  had  been  subpoenaed  in  his  behalf,  as  he  was  in- 
formed by  the  sheriff;  that  the  other  three  lived  in  the 
state  of  Ohio,  Butler  county  ;  that  he  expected  to  be  able 
to  procure  their  testimony  by  the  next  term  of  that  Court, 
either  by  deposition  or  otherwise,  and  support  the  mat- 
ters alleged  in  his  plea  of  defence,  and  prove  the  bad  char- 
acter of  the  said  Alma  Spencer,  if  this  cause  should  be 
continued;  and  that  he  knew  of  no  other  persons  by 
whom  he  could  prove  the  same  facts.  To  counteract  the 
effect  of  this  affidavit,  the  plaintiff  introduced  the  affidavit 
of  a  third  person,  which  was  received  and  read  by  the 
Circuit  Court.  The  Circuit  Court,  on  hearing  these  affi- 
davits, refused  to  continue  the  cause.  We  deem  it  unne- 
cessary to  notice  the  counter  affidavit  introduced  by  the 
plaintiff",  inasmuch  as  we  are  of  opinion  that  the  defend- 
ant's affidavit  does  not  show,  conclusively,  that  the  Cir- 
cuit Court  transcended  the  bounds  of  a  legal  discretion 
in  refusing  a  continuance  of  the  cause.  Without  min- 
utely criticising  this  affidavit,  we  see  two  points  of  uncer- 
tainty in  it.  The  first  is  as  to  the  summoning  of  the  resi- 
dent witness.  The  sheriff's  information  was  not 
[*287]  the  best  evidence  in  this  matter  to  which  the  *de- 
fendant  might  have  referred.  The  sheriff's  offi- 
cial return  to  the  subpoena  was  preferable.  The  second 
is,  that  the  defendant  does  not  state  conclusively  that  he 
expects  to  prove  anything  by  any  of  these  witnesses;  but 
that,  if  the  cause  should  be  continued,  he  expected  to 
procure  their  testimony  either  by  deposition  or  otherwise, 
and  support  the  matters  alleged  in  his  plea,  and  prove  the 
bad  character  of  the  plaintiff*.  Passing  the  vagueness  of 
what  he  expected  to  prove,  he  does  not  say,  positively, 
that  he  expected  to  prove  this  by  these  witnesses  or  any 
of  them;  nor  will  the  statement  that  he  knew  of  no  other 
persons  by  whom  he  could  prove  the  same  facts,  entirely 
remove  this  uncertainty.  When  an  application  is  made 
to  this  Court  to  reverse  a  judgment,  on  account  of  an 

(336) 


XO\'EAli;Ei{  TEIIM,  1829.  287-288 

Gordon  r.  Spencer. 

abuse  of  legal  discretion  by  the  Circuit  Court,  a  case  must 
be  made  out  that  shows,  unequivocally,  that  the  Circuit 
Court  has  abused  its  discretionary  powers.  So  that  we 
can  not  sa}^  that  the  Circuit  Court  erred  in  refusing  a  con- 
tinuance (1). 

The  second  bill  of  exceptions  is  as  follows :  "  The  plain- 
tift"  offered  in  evidence  to  the  jury  words  spoken  bj'  the 
defendant  on  interrogatories  (of  the  plaintiff,)  to  support 
the  words  laid  in  the  declaration,  (the  words  as  set  out  in 
the  declaration  being  proved  by  other  witnesses;)  to  the 
admission  of  which,  as  evidence  to  the  jury  to  support  the 
words  laid  in  the  declaration,  the  defendant  by  his  counsel 
objects,  and  moves  the  Court  to  charge  the  jury,  that 
words  spoken  by  the  defendant  of  the  plaintiff,  on  inter- 
rogatories, could  not  be  received  as  evidence  to  support 
the  words  laid  in  the  declaration;  which  said  objection 
and  motion  of  the  defendant  were,  by  the  Court,  overruled, 
and  the  evidence  aforesaid  was  permitted  to  go  to  the  jury, 
in  support  of  the  words  charged  in  the  declaration  ;  to 
which  decision  and  judgment  of  the  court,  the  defend- 
ant by  his  counsel  excepts."  The  appellant  by  his  coun- 
sel contends  with  much  earnestness,  that  the  Circuit  Court 
erred  in  the  admission  of  his  testimony.  He  relies,  in 
sup[)()it  of  this  position,  principally,  on  the  case  of  Kinr/ 
V.  Warwg,  5  Esp.  R.  13,  and  Smith  v.  Wood,  3  Campb. 
323.  In  King  v.  Waring,  Lord  Alvanley  decided,  that 
"though  a  letter  giving  a  false  character  of  a  servant 
might  be  the  ground  of  an  action,  yet  if  written  as  an  an- 
swer to  a  letter  sent,  not  with  a  view  of  obtaining  a  char- 
acter, but  with  an  intention  to  procure  an  answer, 
[*288]  upon  which  to  ground  *an  action  for  a  lil)el, 
such  evidence  ought  not  to  be  admitted.  In  Smith 
V.  Wood,  which  was  an  action  for  libel  upon  the  plaintiff* 
in  the  shape  of  a  caricature  print,  entitled,  "The  inside  of 
a  parish  work-house  with  all  abuses  reformed,"  a  witness 
stated  that,  having  heard  that  defendant  had  a  copy  of 
this  print,  he  went  to  his  house  and  requested  liberty  to 
Vol  II.— 22  (337) 


288  SUPREME  COURT  OF  INDIANA. 

Gordon  v.  Spencer. 

see  it ;  and  that  the  defendant  thereupon  produced  it,  and 
pointed  out  the  figure  of  the  plaintifl"  and  the  other  persons 
it  ridiculed.  Lord  Ellenborough  ruled,  that  this  was  not 
suilicient  evidence  of  publication  to  support  the  action. 
Starkie,  in  his  treatise  oh  evidence,  annexes  a  quaere  to 
this  case;  because  it  does  not  appear  that  the  witness  had 
been  sent  by  the  plaintiff.  2  Stark,  Ev.  877.  These  cases, 
together  with  some  insinuations  in  the  case  of  Rogers  v. 
Clifton,  3  Bos.  &  Pull,  587,  though  less  strong  than  the 
foregoing,  may  be  considered  as  supporting  the  doctrine 
laid  down  in  Starkie  on  Slander,  169,  and  2  Stark.  Ev. 
876,  viz  :  that  where  the  plaintiff,  knowing  the  defendant's 
sentiments,  procures  the  publication  for  the  purposes  of 
the  action,  he  can  not  afterwards  be  heard  to  complain  of 
that  as  an  injury,  which  he  has  voluntarily  occasioned. 

Taking  this  to  be  the  law  upon  this  subject,  still  we  are 
of  opinion  that  the  bill  of  exceptions  does  not  show,  that 
the  Circuit  Court  erred  in  the  admission  of  this  testimony, 
or  in  the  refusal  of  these  instructions.  If  the  plaintiff, 
hearing  that  the  defendant  had  uttered  the  slander  to 
others,  should  inquire  of  the  defendant  as  to  the  truth  of 
the  report,  and  the  defendant  should  repeat  the  slander, 
the  fact  that  he  spoke  the  slanderous  words  in  answer  to 
the  plaintiff's  interrogatories  in  the  last  instance,  would 
not  destroy  the  plaintiff's  right  of  action.  And  after  the 
plaintiff  had  proved  the  first  speaking  of  the  words,  we 
know  of  no  rule  that  would  prevent  him  from  proving, 
that  the  same  words  were  afterwards  repeated  in  answer 
to  his  interrogatories.  In  tliis  case,  the  words  laid  in  the 
declaration  were  first  proved,  (says  the  bill  of  exceptions,) 
by  other  witnesses,  before  the  evidence  relative  to  the 
words  spoken  in  answer  to  interrogatories  was  introduced ; 
and  there  is  not  enough  in  the  bill  of  exceptions  to  show 
that  the  evidence  objected  to  was  inadmissible.  To  make 
this  a  case,  in  which  we  could  determine  as  to  the  ad- 
missibility of  the  words  spoken  in  answer  to  inter- 
rogatories,  it    should    appear   what   the    interrogatories 

(33  S) 


NOVEMBER  TERM,  1829.  28^ 

The  State  i'.  Stucky,  in  Error. 

[*289]  *were,  what  induced  them,  what  the  words  thus 
spoken  were,  and  how  tar  they  varied  the  case 
from  what  it  would  otherwise  have  been.  The  refusal  of 
the  Circuit  Court  to  give  the  instructions  required, 
amounts  to  no  more  than  the  admission  of  the  testimony, 
and  its  correctness  can  only  be  tested  by  the  precise  state  of 
the  case.  We  have  seen  neither  principle  nor  precedent, 
that  would  authorize  us  to  say,  in  general  terms,  that 
words  spoken  by  a  defendant  in  answer  to  interrogatories 
of  a  plaintiiF,  can  in  no  case  be  given  in  evidence  to  sup- 
port the  words  laid  in  the  declaration,  where  the  words 
laid  in  the  declaration  have  been  previously  proved  by 
other  witnesses. 

Per  Curiam. — The  judgment  is  affirmed  with  1  per  cent, 
damages  and  costs. 

Wick,  3Iorris,  Starr,  and  Caswell,  for  the  appellant. 

M' Kinney  and  Smith,  for  the  appellee. 

(1)  The  principal  facts,  expected  to  be  proved  by  the  absent  witness^ 
must  be  stated  in  the  affidavit,  in  order  that  the  Court  may  judge  of  the  ma- 
teriality of  the  witness.    Stat.  1833,  p.  115. 


The  State  v.  Stucky,  in  Error. 
A^N"  indictment  for  retailing  spirituous  liquors  to  divers 
persons  without  license,  is  bad.     It  should  either  contain 
the  names  of  the  persons  to  whom  the  sale  was  made,  or 
state  their  names  to  be  unknown.     1  Chitt.  C.  L.  211. 


Shelby,  Administratrix,  v.  The  Governor,  for  the  use  of 

Newman. 

Admissions  of  Principal — Liability  of  Surety. — A  sheriff's  acknowl- 
edgment that  he  had  collected  money  on  an  order  of  sale,  can  not  be 
proved  to  sustain  an  action  for  the  money  on  the  plaintiff's  surety  imless 
the  acknowledgment  was  made  whilst  the  sheriff  was  acting  officially  in 
relation  to  the  receipt  of  the  money  (a). 

(a)  15  Ind.  64.  ~~ 

(339) 


289-290   SUPREME  COUHT  OF  INDIANA. 

Shelby,  Aduiinistratrix,  i.  The  Governor,  for  the  use  of  Newman. 

ERROR  to  the  Clark  Circuit  Court. — For  the  cause  of 
action  aud  the  defence  in  this  case,  see  The  Governor  v. 

Shelby,  ante,  p.  26, 
[*290]  HoLMAN,  J. — On  the  trial,  the  pUiintiiF  intro- 
duced a  witness  to  prove  that  Weathers  told  him 
that  he  had  collected  the  money  in  controversy.  To  the 
admission  of  which  testimony  the  defendant  objected, 
but  the  Court  were  divided  on  the  question  and  the  tes- 
timony went  to  the  jury;  to  which  the  defendant  ex- 
cepted. The  plaintiiFhad  a  verdict  and  judgment,  wh'ch 
judgment  the  defendant  seeks  to  reverse  by  writ  of  error. 
Agreeably  to  the  decision  in  the  case  of  Hotchkiss  v.  Lyon 
and  Others,  May  term,  1829  (1),  and  the  cases  there  cited, 
the  admissions  or  declarations  of  a  principal  are  not  evi- 
dence against  a  surety,  unless  such  admissions  or  declara- 
tions form  a  part  of  the  transaction  in  which  the  prin- 
cipal, as  such,  is  engaged.  If  Weathers,  while  officially 
acting  in  relation  to  the  receipt  of  this  money,  stated  that 
he  had  received  it,  such  statement  would  form  a  part  of 
the  res  gestre,  and  would  be  evidence  to  prove  the  act  of 
receiving;  and  would  therefore  be  admissible  against  his 
sureties.  But  declarations  made  by  him  at  any  subse- 
quent period,  would  have  no  connection  with  the  act,  and 
could  not  be  introduced  as  evidence  of  the  act,  so  as  to 
bind  his  sureties;  for  it  is  his  acts  and  not  his  admissions 
or  declarations,  for  which  his  sureties  are  bound.  As  the 
statement  of  Weathers,  that  he  had  collected  this  money, 
is  not  connected  by  the  testimony,  with  any  act  of  his 
relative  to  this  order  of  sale,  or  any  money  collected  by 
him  on  this  order,  it  was  inadmissible  as  evidence  against 
the  defendant  in  this  case. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

Howk  and  Dewey,  for  the  plaintiff. 

Thompson,  for  the  defendant. 

(1 )  Ante,  p.  222. 

(340) 


NOVEMBER  TERM,  1829.  290-291 

O'Brien  and  Others,  Executors,  v.  Daniel  and  Others. 


O'Brien  and  Others,  Executors,  v.  Daniel  and  Others. 

Attachment — Affidavit — Pleading. — An  Affidavit  in  attachment  can 
not  be  objected  to  for  not  describing  the  nature  of  the  debt,  if  the  same  be 
described  in  a  declaration  tiled  in  the  cause. 

Same — Venue. — The  affidavit,  in  the  case  of  a  domestic  attachment,  must 
state  the  county  in  which  the  debtor  had  recently  resided  (a). 

[*291]      *ERROR  to  the  Posey  Circuit  Court. 

HoLMAN,  J. — Domestic  attachment  on  the  following- 
affidavit  : — "  State  of  Indiana,  Posey  county,  ss :  I,  Rich- 
ard Daniel,  of  the  county  aforesaid,  do  solemnly  swear 
that  John  J.  O'Brien,  James  J.  O'Brien  and  Michael 
O'Byrns,  executors  of  the  last  will  and  testament  of 
Thomas  Jones,  deceased,  are  justly  indebted  to  me,  the 
said  Richard  Daniel,  in  the  sum  of  150  dollars;  and  that 
the  said  John  J.  O'Brien,  James  J.  O'Brien  and  Michael 
O'Byrns,  so  concealed  themselves  that  the  ordinary  pro- 
cess of  law  can  not  be. served  upon  them. — R.  Daniel." 
Endorsed,  sworn  to,  &c.  A  number  of  creditors  filed  their 
claims  under  this  attachment,  and  proceeding  were  had 
to  final  judgment.  Among  a  variety  of  errors  assigned 
for  reversing  these  proceedings,  two  exceptions  are  taken 
to  the  affidavit.  One  is,  that  the  affidavit  does  not  specify 
the  nature  of  the  debt  on  which  the  attachment  is  foun- 
ded: but  as  a  declaration  was  afterwards  filed  by  Daniel, 
specifying  the  nature,  &c.  of  his  debt,  this  defect  is  re- 
moved. The  other  is,  that  the  affidavit  does  not  state 
that  the  debtors  were  late  of  the  said  county,  as  required 
by  the  act  of  assembly,  or  of  any  other  county  in  this 
state.  This  exception  is  well  taken.  The  act  of  assembly 
requires  the  affidavit  to  state  the  late  residence  of  the 
debtors.  R.  C.  1824,  p.  61  (1).  From  anything  in  this 
affidavit,  the  debtors  may  have  been  non-residents,  and 
not    subject   to  a   domestic   attachment.      The    ex  parte 

(a)  9  Ind.  367. 

(341) 


291-292    SUPREME  COURT  OF  IXDIAXA. 

Swan  V.  Rarj. 

nature  of  these  proceedings  requires  a  strict  compliance 
with  every  statutory  requisition. 

Per  Curiam. — The  judgment  is  reversed  with  costs.    To 
be  certified,  &c. 

Howk,  for  the  plaintiffs. 
Hall,  for  the  defendants. 

(1)  Accord.    R.  C.  1831,  p.  75. 


Swan  v.  Rary. 


Practice — Issues  and  Trial. — The  issues  must   be  made  up  before  the 

jury  are  sworn,  excepting  only  that  a  similitti'  may  be  dispensed  with. 

Same — Filing  of  Pleadings. — An   affidavit    by   the   plaintiff's 

[*292]  attorne}',  that  he  had  left  the  replication  on  the  clerk's  *table  with 

the  papers  in  the  cause,  and  that  it  had  afterwards  come  into  the 

deponent's  possession  by  mistake,  does  not  show,  with  sufficient  certainty, 

that  the  replication  had  been  properly  filed. 

APPEAL  from  the  Parke  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  slander  by  Rary 
against  Swan.  The  defendant  pleaded  not  guilty  and  a 
justification.  Verdict  for  the  plaintifiT  below.  A  motion 
was  made  by  the  defendant  below  in  arrest  of  judgment, 
because  there  was  no  replication  to  his  special  plea.  It 
appeared  that  after  the  verdict  had  been  received  the  re- 
plication to  the  special  plea  was  in  possession  of  Rary's 
attorney,  and  had  not  been  filed,  unless  the  following 
facts  shown  by  that  attorney's  afiidavit,  amounted  to  a 
filing,  viz.,  that  he  had  left  the  replication  on  the  clerk's 
table  with  the  papers  in  the  cause,  and  that  it  had  after- 
wards come  into  the  attorney's  possession  b}-  mistake. 
The  Circuit  Court  overruled  the  motion  in  arrest  of  judg- 
ment, and  rendered  judgment  on  the  verdict. 

It  is  not  disputed  but  that  it  was  necessary  to  file  the 
replication  previously  to  the  trial.  The  issues  must  be 
made  up  before  the  jury  are  sworn;  excepting  only,  as 

(342) 


NOVEMBER  TERM,  1829.  292-293 

Glass  V.  Doe,  on  the  Demise  of  Murphy,  on  Appeal. 

we  have  heretofore  decided,  that  the  similiter  may  be  dis- 
pensed ^yith.  Jared  v.  Goodtitle,  Nov.  term,  1818  (1). 
The  only  question  in  this  case  is,  was  the  replication  prop- 
erly tiled?  Our  opinion  is  that  the  record  does  not  show 
that  it  was.  It  is  not  stated  by  the  affidavit  that  the  re- 
plication was  ever  in  the  hands  of  the  clerk.  After  the 
trial  it  was  found  to  be,  by  mistake,  in  the  possession  of 
the  plaintiff's  attorney.  The  circumstance  of  its  having 
been  once  left  on  the  clerk's  table,  by  the  attorney,  is  not, 
under  the  circumstances  of  the  case,  sufficient  evidence 
that  it  had  been  properly  tiled.  The  motion  in  arrest  of 
judgment  should  have  been  sustained. 

Per  Curiam. — The  judgment  is  reversed.  Cause  re- 
manded, &c. 

Dewey  and  Kinney,  for  the  appellant. 

Cone,  for  the  appellee. 

(1)  Vol.  1,  of  these  Eep.  29.  It  is  held,  in  a  late  case,  that  even  the 
omission  to  add  the  similiter  is  an  irregularity  for  which  a  verdict  will  be 
set  aside.  Griffith  v.  Ci-ockford,  3  Brod.  &  Bing.  1.  But  there  are  several 
cases  to  the  contrary.     Vide  note  to  Jared  v.  Ooodtitle,  cited  in  the  text. 


;[*293]    Glass  v.  Doe,  on   the   Demise  of   Murphy,   on 

Appeal. 

Infants— Right  to  be  Made  Parties. 

AN  infant,  having  a  title  to  land  for  which  an  action 
of  ejectment  is  brought,  has  a  right  to  be  admitted  a  de- 
fendant on  the  usual  terms;  and  the  Court  should  appoint 
a  guardian  for  him,  in  order  that  he  may  be  enabled  to 
defend  the  suit. 


Wheeler  and  Another  i\  Emerson,  on  Appeal. 

ONE  of  two  defendants  in  chancery  can  not  be  exam- 
ined as  a  witness  by  the  complainant,  without  a  special 

order  of  the  Court. 

(343) 


293  SUPREME  COURT  OF  INDIANA. 


Long,  V.  Long,  on  Appeal. 


Long  v.  Long,  on  Appeal. 

Evidence — Variance.  : 

DEBT  on  a  writing  obligatory  for  the  payment  of  one 
hundred  and  twenty  dollars.  The  declaration  set  forth  the 
sum  in  words  as  above.  The  note,  when  produced  on 
oyer,  showed  a  promise  to  pay  $120;  the  sum  being  ex- 
pressed in  figures.    Held^  that  the  variance  was  immaterial. 

Plea,  in  this  case,  that  the  obligation  had  been  given  to 
the  plaintiff  in  part  payment  of  a  tract  of  land  purchased 
of  him  by  the  defendant,  which  land  had  been  previously 
devised  to  the  plaintiff;  that  the  plaintiff  knew  of  the 
will,  and  had  had  it  under  his  control  for  three  years  next 
ensuing  the  testator's  death,  but  had  not,  within  that  time, 
caused  the  same  to  be  proved  and  recorded.  Held,  on  de- 
murrer, that  the  plea  was  insufficient. 


END  OF  NOVEMBER  TERM,  1829. 


(344) 


[*294]  *  CASES 

ARGUED  AND  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 

OF   THE 

STATE  OF  INDIANA, 


A.T  INDIANAPOLIS,   MAY  TERM,   1830,    IN    THE    FOURTEENTH  YEAR    OF  THE 

STATE. 


Cooper  v.  Adams  and  Another,  in  Error. 
Arrest — Justification — Affidavit  and  Warrant. 

TO  an  action  for  false  imprisonment  against  a  justice 
of  the  peace  and  a  constable,  the  defendants  pleaded  in 
justification  that  an  affidavit  had  been  made  before  the 
justice,  charging  the  plaintiff  with  having  violently  as- 
saulted, beaten  and  wounded  the  deponent,  wherefore  the 
justice  had  issued  his  warrant,  &c.  Held,  that  the  plea 
was  not  objectionable,  after  a  verdict  in  favor  of  the  de- 
fendants, for  not  showing  that  the  assault  and  battery 
were  charged  to  have  been  unlawfully  made. 

The  arresting  of  an  offender  and  the  retaking  of  him 
on  fresh  pursuit  after  an  escape  constitute  but  one  effect- 
ive arrest. 

The  warrant  of  a  justice  of  the  peace,  on  a  charge  of 
an  assault  and  battery,  commenced  as  follows  :  "  The  state 
of  Indiana,  Allen  county,  ss :  To  William  Brown,  con- 
stable of  Adams  township,  greeting  ;  "     Held,  that  no  ob- 

(345) 


294-295    SUPREME  COURT  OF  INDIANA. 

Frakes  i'.  Brown. 

jection  could  be  made  to  the  warrant,  on  account  of  its 
not  repeating,  in  the  mandatory  part  of  it,  the  name  of 
the  state. 

A  person  arrested  on  a  justice's  warrant  for  a  breach 

of  the  peace  can  not  maintain  an  action  of  false 

[*295]    imprisonment  against  *the  justice  or  constable,  in 

consequence  of  a  mere  informality  in  the  warrant, 

provided  the  justice  have  jurisdiction. 

It  is  always  presumed  by  this  Court,  that  all  the  evi- 
dence necessary  to  sustain  the  verdict  was  given  to  the 
jury,  unless  the  contrary  be  shown  by  the  record. 


Frakes  r  Brown. 


Alimony — Judgment  Lien. — If  a  wife  obtain  a  decree  for  a  divorce  and 
for  a  certain  sum  as  alimony,  the  decree  for  the  alimony  is  a  lien  on  the 
real  estate  of  the  husband. 

Judicial  Sale — Keversal  of  .Judgment. — The  reversal  of  a  judgment 
on  error,  after  a  sale  of  land  under  it  on  execution,  does  not  affect  the 
purchaser's  title. 

Sheriff — Fieri  Facias. — A  fieri  facias,  by  statute,  expressly  commands 
the  sherifTto  make  the  money  of  the  goods  and  chatties,  lands  and  tene- 
ments, of  the  debtor. 

Judicial  Sale — Personal  and  Real  Property. — A  purchaser  of  land  at 
SheriflP's  sale,  is  not  obliged  to  show  that  the  debtor  had  not  personal 
property  to  satisfy  the  judgment.  It  is  only  necessary  for  him  to  show 
the  judgment  of  a  competent  Court,  and  the  kind  of  execution  which 
authorizes  the  sheriff  to  sell.  He  has  a  right  to  presume  that  all  the  in- 
termediate proceedings  are  correct. 

Fraudulent  Conveyance  Against  WifS. — A  wife  has  a  lawful  claim 
upon  her  husband  for  her  maintenance;  and  if,  during  the  pendency  of 
her  petition  for  a  divorce  and  alimony,  a  conveyance  of  his  land  be  exe- 
cuted by  the  husband  in  order  to  defraud  his  wife  of  her  right  to  a  sup- 
port, and  be  received  by  the  grantee  with  the  same  fraudulent  design,  the 
conveyance  as  to  her  is  void. 

Injunction — Sale  Contrary  to  Order  of  Court — Notice. — During  the 
pendency  of  a  petition  for  a  divorce  and  alimony,  the  Court  may  make 
an  order  on  the  defendant  requiring  him  not  to  dispose  of  any  of  his  real 
or  personal  property;  but  the  purchaser  of  real  estate  from  the  defend- 
ant will  not  be  aifected  by  the  order,  unless  he  have  actual  notice  of  its 

(346) 


MAY  TERM,  1830.  295-296 

Frakes  v.  Brown. 

existence ;   the   pendency   of  the  suit   and  entry  of  the  order,  not  being 

sufficient  of  themselves  to  avoid  the  conveyance  (a). 
Fraudulent  Conveyance— By  Whom  Set  Aside. — A  deed,  fraudulent  as 

to  a  judgment-creditor,  may  be  set  aside  at  the  suit  of  the  purchaser  at 

sheriff's  sale  under  the  judgment  (b). 
Same — Fraud  of  Grantee. — To  render  a  deed  fraudulent  and  void  as  to 

creditors,  there  must  be  fraud  in  the  grantee  as  well  as  in  the  grantor  (c). 
Same — Kemedy  After  Judicial  Sale. — The  purchaser  of  real  estate  at 

sheriff's  sale  may  obtain  a  decree  setting  aside  a  deed  which  had  been 

made   to   defraud  the  judgment-creditor,  and  securing  the   purchaser's 

title  against  any  claims  under  the  fraudulent  deed ;  but  the  decree  can 

not  vest  the  absolute  fee  in  the  complainant. 

APPEAL  from  the  Decatur  Circuit  Court. 

Blackford,  J. — This  was  a  bill  in  chancery,  in  which 
Brown,  the  complainant,  prays  that  conveyance  of  a  tract 
of  land,  made  by  Reuben  Jones  to  the  defendant,  may  be 
set  aside  as  fraudulent  and  void. 

The  bill  states,  that,  at  the  September  term, 
[*296]  1825,  of  the  *Decatur  Circuit  Court,  Martha  Jones 
filed  a  petition  against  her  husband,  Reuben  Jones, 
for  a  divorce  and  alimony  ;  that,  during  the  same  term, 
the  Court  made  an  order  upon  the  defendant  not  to  dis- 
pose of  his  property  until  the  suit  should  be  determined; 
that,  at  the  March  term,  1826,  the  petitioner  obtained  a 
divorce,  and  a  judgment  for  the  sum  of  550  dollars  as  ali- 
mony; that,  by  virtue  of  a  fieri  facias,  issued  upon  this 
judgment,  the  land  in  question  was  sold  in  !N"ovember, 
1826,  and  the  complainant  was  the  purchaser.  The  bill 
further  states,  that,  during  the  pendency  of  the  suit  for  a 
divorce,  viz.,  in  November,  1825,  the  said  land  was  con- 
veyed fraudulently  and  without  consideration,  by  Jones 
to  Frakes,  to  avoid  the  consequences  of  Mrs.  Jones'  suit. 
Both  the  parties  to  the  deed  are  charged  by  the  bill  with 
notice  of  the  pendency  of  the  suit,  and  with  fraud. 

A  demurrer  and  plea  to  the  bill  were  filed;  but  these 
may  be  considered  as  overruled  by  the  answer,  which 
covers  the  whole  case.     The  defendant,  in  his  answer,  in- 

(a)  8  Ind.  427.     (6)  35  Ind.  483.     (c)  16  Ind.  172 ;  20  Id.  297. 

(347) 


296-297    SUPREME  COURT  OF  INDIANA. 

Frakes  i-.  Brown. 

sists  that  he  is  a  bona  fide  purchaser  for  a  valuable  consid- 
eration;  denies  all  fraud;  and  avers  that  he  had  no 
knowledge  of  the  order  of  the  Court,  nor  of  the  pendency 
of  the  suit  referred  to  in  the  bill. 

The  material  facts  in  this  case  are  as  follows:  A  short 
time  before  the  sitting  of  the  Circuit  Court  in  Decatur 
county,  in  September,  1825,  Reuben  Jones  and  his  wife 
had  a  dispute  and  separated.  At  that  term  of  the  Court 
Mrs.  Jones  filed  a  petition  for  a  divorce  and  alimony; 
and  obtained  an  order  against  her  husband,  restraining 
him  from  disposing  of  his  property  until  the  cause  should 
be  decided.  At  the  March  term,  1826,  the  petitioner  ob- 
tained a  divorce,  and  a  judgment  for  the  sum  of  550  dol- 
lars as  alimony.  Upon  this  judgment  an  execution  of 
fieri  facias  issued,  and  was  levied  upon  the  land  in  dis- 
pute as  the  property  of  Jones.  The  complainant  pur- 
chased it  in  Noveml)er,  1826,  at  the  sherift''s  sale. 

During  the  pendency  of  this  suit  for  a  divorce,  and  sub- 
sequently to  the  restraining  order,  viz.,  about  the  1st  of 
October,  1825,  Jones,  the  husband,  executed  a  bill  of  sale 
to  Frakes,  the  defendant  in  the  present  suit,  for  the  whole 
of  his  personal  property,  except  a  few  small  articles  which 
he  sold  to  others.  The  property  thus  sold  to  Frakes,  con- 
sisted of  horses,  cattle,  hogs,  sheep,  corn  and  beds. 
[*297]  Jones  stated  at  the  time  of  this  sale  *that  he  was 
putting  his  property  out  of  his  hands  to  prevent 
liis  wife  from  getting  any  of  it.  About  the  same  time, 
Jones  took  his  children  to  Frakes'  house  to  be  taken  care 
of,  and  went  himself  not  long  afterwards  to  the  county 
of  Ripley,  and  resided  with  Frakes'  son.  Frakes,  having 
sold  a  considerable  part  of  this  property,  and  received  the 
money  for  it,  went  into  Ripley  county  to  see  Jones,  who 
had  then  been  there  eight  or  ten  days.  On  the  evening 
of  his  arrival,  he  told  Jones  that  he  had  brought  him  the 
money  to  pay  for  the  land;  and,  the  next  morning,  he 
and  Jones  went  together  to  Versailles.  There,  the  con- 
veyance of  Jones'  land  to  Frakes,  charged  in  the  bill  to 

(348) 


MAY  TERM,  1830.  297-298 


Frakes  v.  Brown. 


be  tVaudnleiit,  was  written  at  their  request  by  the  clerk 
of  the  Court.  At  this  time,  Frakes,  in  presence  of  the 
clerk,  paid  Jones  about  40  dollars,  and  gave  him  a  note 
for  some  amount  besides.  This  conveyance  is  dated  the 
21st  of  November,  1825.  Immediately  after  this  trans- 
action Frakes  returned  to  his  home  in  Decatur  county ; 
and,  in  the  latter  part  of  December  following  Jones  also 
returned  to  that  county. 

At  the  time  of  the  separation  of  Jones  and  his  wife, 
Jones    and    Frakes  resided    in   the    same   neighborhood. 
Their  circumstances  were  moderate.     Frakes  owned  80 
acl-es  of  land  and  some  personal  property  ;  but  he  was  not 
able  to  buy  any  more  land  without  first  selling  his  own. 
Some  time  after  these  things  had  taken  place,  :N'athan 
Grume,  the  son-in-law  of  Frakes,  heard  both  Jones  and 
Frakes  say,  at  different  times,  that  all  the  buying  and 
selling  between  them  was  for  the  purpose  of  preventing 
Mrs.  Jones  and  her  lawyers  from  getting  any  of  her  hus- 
band's property.     He  also  heard  Frakes  say  that  he  re- 
ceived the  money  from  Jones  and  paid  it  back  to  him  for 
the  land   in  the  presence  of  the  clerk  of  Ripley  county. 
Both  Nathan  Grume  and  his  wife,  the  daughter  of  Frakes, 
heard  Jones  tell  Frakes  that  he  wished  him,  when  he  sold 
the  land,  to  pay  Joseph  Jones  his  money ;  and  that  the 
balance  he,  Reuben  Jones,  would  put  in  his  pocket  and 
go  away.    To  which  Frakes  replied  by  saying— yes.    They 
also  heard  Frakes  say  that  w^ere  it  not  for  his  daughter 
Betsy  he  would  give  up  the  property  to  Jones. 

There  is  a  great  deal  of  evidence  as  to  whether  Jones 
and  Frakes,  at  the  time  when  the  land  was  conveyed, 
knew  of  the  pendency  of  the  suit  for  the  divorce, 
[*298]  and  of  the  restraining  *order  mentioned  in  the 
bill.  Taking  all  the  depositions  on  the  subject 
together,  we  are  satisfied  that  they  both  knew,  at  that 
time,  that  there  were  some  proceedings  depending  m 
Court  against  Jones  at  the  suit  of  his  wife,  in  consequence 
of  his  ifl-treatment  of  her,  which  might  affect  his  prop- 

(349) 


298  SUPKEME  COURT  OF  IN"DIANA. 

Frakes  r.  Brown. 

erty.  But,  at  the  same  time,  there  is  no  sufficient  proof 
that  they  knew  what  was  the  precise  nature  of  those  pro- 
ceedings, or  that  the  Court  had  made  the  order  alluded 
to. 

The  case  was  submitted  to  the  Circuit  Court  upon  bill, 
answer  and  depositions.  That  Court  set  aside  the  deed 
from  Jones  to  Frakes  as  fraudulent;  and  decreed  that 
Brown  was  the  owner  in  fee-simple  of  the  land,  and  that 
he  should  forever  be  quieted  in  his  title  acquired  under 
the  sheriff's  sale.  Frakes  and  all  claimants  under  him 
were  also  perpetually  enjoined  from  disturbing  Brown's 
possession  of  the  premises.  From  that  decree  the  defend- 
ant has  appealed  to  this  Court. 

The  first  objection  to  the  comphiinant's  claim  is,  that 
the  sheriff  had  no  authority  to  sell  the  land,  admitting  it 
to  have  belonged  to  Jones,  It  is  said  that  real  estate  is 
not  liable  on  a  decree  for  a  divorce  and  alimony.  The 
answer  to  this  is,  that  here  is  a  judgment  against  Jones 
for  a  certain  sum  of  money,  rendered  by  a  Court  having 
jurisdiction  of  the  cause;  and  that  evefj'  judgment  of 
this  kind  is,  by  statute,  a  lien  on  real  estate.  It  is  not  for 
this  Court  to  look  beyond  the  judgment  in  the  case  be- 
fore us.  It  must  be  considered  as  having  the  same  effect 
as  all  other  judgments  for  the  payment  of  money,  whilst 
it  stands  unreversed  and  remains  unsatisfied.  Indeed, 
were  the  judgment  erroneous,  and  had  it  been  reversed 
since  the  sheriff's  sale,  that  circumstance  would  not  affect 
the  purchaser's  title.  Manning's  case,  S  Co,  Rep,  187; 
R,  C.  1824,  p.  195.  It  is  also  said  that  an  execution  of 
fieri  facias,  on  which  this  land  was  sold,  does  not  author- 
ize a  sale  of  real  property.  This  is  certainly  a  mistake. 
The  writ  denominated  by  ns  a  fieri  facias  is  an  execution 
expressly  commanding  the  sheriff  to  make  the  money  of 
the  goods  and  chattels,  lands  and  tenements,  of  the  debtor. 
It  is  also  said  that  it  should  appear  that  Jones  had  not 
personal  property  to  satisfy  the  judgment.  This  is  not 
necessary,     A  purchaser  at  sherift''s  sale  is  only  obliged 

(350) 


MAY  TERM,  1830.  298-^  J 

Frakes  v.  Browu. 

to  show  the  judgment  of  a  competent  Court  and  the  kind 
of  execution  that  authorizes  the  sheriff  to  sell. 
[*299]  He  has  a  right  to  presume  that  *all  the  interme- 
diate proceedings  are  correct.  Armstrong  v.  Jack- 
son, i^ov.  term,  1822  (1).  There  are  no  grounds,  there- 
fore, for  the  first  objection  made  by  the  appellant. 

The  other  objection  to  the  complainant's  right  under 
the  sheriff's  deed  is,  that  at  the  time  the  judgment  was 
rendered,  the  land  did  not  belong  to  Jones;  the  appellant 
having  previously  purchased  it  of  him,  bona  fide,  and  for 
a  valuable  consideration.  That  the  purchase  was  made 
by  Frakes,  previously  to  the  judgment,  is  admitted  by  the 
bill ;  but  that  purchase,  the  complaint  contends,  was  made 
to  defraud  Mrs.  Jones,  and  was  consequently  void.  The 
petitioner  for  the  divorce,  as  the  wife  of  Jones,  had  a 
lawful  claim  upon  him  for  her  maintenance ;  and  if  the 
conveyance  was  made  by  Jones  and  received  by  Frakes, 
with  the  intention  of  cheating  Mrs.  Jones  out  of  her 
right  to  a  support,  it  was  certainly  void  by  the  statute  of 
1824,  against  fraudulent  conveyances. 

The  first  ground  relied  upon  to  show  the  conveyance 
void  as  to  Mrs.  Jones,  is,  that  it  was  made  pending  her 
suit,  and  subsequently  to  the  restraining  order.  We  do 
not  agree  with  the  appellant,  that  such  an  order  can  not 
extend  to  real  estate;  on  the  contrary,  we  conceive  it  may 
by  virtue  of  the  statute  of  1824,  p.  157.  But.  at  the  same 
time,  in  order  to  render  it  obligatory,  there  should  be 
actual  notice  of  its  existence.  The  mere  pendency  of  the 
suit,  and  the  entry  of  the  order,  are  not  of  themselves 
sufficient  to  avoid  the  conveyance.  In  the  record  before 
ns,  there  is  no  satisfactory  proof  that  the  proceedings  in 
Court  against  Jones  were  known  to  him  and  Frakes, 
w'hen  the  deed  was  executed;  and  the  case  must  conse- 
quently be  decided  without  any  reference  to  those  pro- 
ceedings. 

The  other  ground  insisted  upon  against  this  conveyance 
is,  that  there  is  sufiicient  evidence  to  show  it  fraudulent, 

(351) 


299-300     SUPREME  COURT  OF  INDIANA. 


Frakes  v.  Brown. 


independently  of  the  pendency  of  the  suit  for  a  divorce. 
Upon  this  point,  we  entirely  agree  with  the  complainant. 
The  parties  to  the  conveyance  resided  in  the  same  neigh- 
borhood, and  were  in  moderate  circumstances.  Frakes 
knew  that  Jones  and  his  wife  had  recently  had  a  dispute 
and  had  separated;  and  he  was  bound  to  know  that  Mrs. 
Jones  had  a  lawful  claim  against  her  husband  for  main- 
tenance. Under  tliese  circumstances,  and  without  being 
able  in   the  opinion  of  his  neighbors,  to  purchase  any 

real  estate  in  addition  to  the  small  tract  on  which 
[*300]    *he  .lived,  Frakes  suddenly  buys  the  whole   of 

Jones'  personal  property,  with  a  trifling  exception, 
and,  shortly  afterwards,  his  land  also.  It  is  in  proof  too, 
that  when  Jones  thus  transferred  his  personal  property, 
he  stated  his  object  to  be  to  prevent  his  wife  from  getting 
any  of  it.  If  the  case  stopped  here,  we  should  be  in- 
clined to  set  aside  the  deed  from  Jones  to  Frakes  as 
fraudulent  and  void  as  to  Mrs.  Jones,  and  as  to  the  com- 
plainant also  who  is  a  purchaser  under  her  judgment. 
"We  should  be  disposed  to  set  it  aside,  not  for  Jones'  fraud 
alone — that  of  itself  would  be  insufiicient — but  because 
Frakes  might  be  viewed  as  the  fraudulent  assistant  of 
Jones  in  the  attempt  to  cheat  his  wife  out  of  her  main- 
tenance. 

In  flxing  upon  Frakes,  at  this  stage  of  tlie  cause,  the 
character  of  a  fraudulent  purchaser,  we  should  decide 
against  him  from  circumstances  merely;  and  not  from 
any  positive  evidence  of  his  fraud.  The  case,  however, 
does  not  rest  here.  There  is  positive  evidence  that  Frakes 
is  not  a  purchaser  for  a  valuable  consideration,  nor  bona 
fide.  The  depositions  of  his  son-in-law,  and  his  own 
daughter,  are  perfectly  satisfactory  to  the  Court,-that  he 
received  the  conveyance  for  the  land  in  question,  without 
any  real  consideration;  that  the  object  of  both  Frakes 
and  Jones  was  to  secure  the  property  from  Mrs.  Jones' 
claims;  and  that  there  existed  a  trust  between  them,  ac- 
cording to  which  the  property  was,  at  some  future  period, 

(3.52)       ■       - 


MAY  TERM,  1830.  300-301 

Taylor  v.  Owen  and  Others. 

to  be  re-conveyed  to  Jones,  or  its  proceeds  paid  to  him. 
An  attempt  was  made  to  impeach  the  testimoin-  of  the 
son-in-law,  but,  we  think,  without  success.  His  evidence 
is  contirmed  by  that  of  his  wife,  and  corroborated  l)y  a 
variety  of  circumstances. 

We  have  now  taken  a  general  view  of  this  case,  and 
have  come  to  the  conclusion  that  the  appellant's  objections 
to  the  sheriff's  sale  to  Brown,  the  complainant,  can  not 
be  supported ;  and  that  the  deed  from  Jones  to  the  appel- 
lant is  fraudulent  and  void.  The  decree  of  the  Circuit 
Court,  therefore,  so  far  as  it  relates  to  the  setting  aside  of 
the  deed  from  Jones  to  Frakes,  and  the  quieting  of  the 
title  of  Brown  against  any  claims  under  that  deed,  and  as 
it  relates  to  the  costs,  must  be  affirmed.  The  other  part 
of  the  decree,  which  adjudges  that  Browti  is  the  owner  in 
fee-simple  of  the  premises,  must  be  reversed. 

Per   Curiam. — The   decree   so  far  as  it  relates,  &c.  is 
affirmed.     The  other  part,  &c.  is   reversed.     To  be  cer- 
tified, &c. 
[*301]        "^M' Kinney  and  Test,  for  the  appellant. 
Wick,  for  the  appellee. 

(1)  Vol,  1  of  these  Kep.  210. 


Taylor  v.  Owen  and  Others* 

Covenants  Runnixg  With  Land — Lease. — A.  being  the  owner  in  fee  of  a 
town,  leased  one  of  the  houses  to  B.  for  a  term  of  years,  and'  covenanted 
in  the  lease,  that  B.  should  have  the  exclusive  privilege  of  vending  mer- 
chandise in  the  town  during  the  term.  Soon  after  the  commencement  of 
that  term  A.  leased  another  house  in  the  town  to  C.  for  a  term  of  years 
without  any  restriction  as  to  the  vending  of  merchandise;  C.  under-let  a 
part  of  this  house  to  D.  without  restriction  ;  and  P.  commenced  the  sale 
of  merchandise  on  the  premises  so  leased  to  him.  D.,  before  the  date  of 
his  lease,  had  notice  of  A.'s  covenant  with  B.,  and  C.  had  notice  of  the 
same  before  D.'s  sale  had  commenced.     Held,   that  D.   was  not,  under 

Vol.  II.— 23  (353) 


301-302   SUPREME  COURT  OF  INDIANA. 

Taylor  v.  Owen  and  Others. 

these  circumstances,  prohibited  from  vending  merchandise  in  the  part  of 
the  house  which  had  been  leased  to  him  by  C  (a). 

Same. — The  right  of  the  owner  of  real  estate  to  carry  on  trade  there  to  the 
exclusion  of  all  others,  can  not  be  made  the  subject  of  a  separate  convey- 
ance, so  as  to  prevent  a  subsequent  holder  of  the  property,  without  his 
own  agreement,  from  pursuing  his  lawful  business  there. 

Same. — Such  covenants  as  the  above-mentioned,  of  A.  with  B.,  are  merely 
of  a  personal  nature.  They  neither  run  with  the  land  of  the  covenantor, 
nor  create  any  lien  thereon  either  legal  or  equitable. 

Same — Bona  Fide  Vendee. — A  bona  fide  vendee  or  lessee  of  real  estate,  is 
not  affected  by  such  a  personal  covenant ;  and  the  circumstance  of  his 
having  had  notice  of  it  makes  no  difference. 

Same — Lessee — Sub-Lessee. — The  under  lessee  of  real  estate  has  a  right 
to  pursue  thereon  any  lawful  business  he  chooses,  which  is  not  prohibit- 
ed by  the  lease  to  his  lessor  nor  by  that  to  himself;  and  which  is  not  in- 
jurious to  the  premises. 

Same — Breach. — A.,  by  his  unrestricted  lease  to  C,  above-mentioned, 
broke  his  covenant  with  B. ;  and  he  is  liable  for  the  breach  to  B.,  if  the 
covenant  be  valid,  in  an  action  at  law. 

ERROR  to  the  Gibson  Circuit  Court. 

Blackford,  J. — This  was  a  suit  in  chancery.  The  com- 
plainant, Taylor,  was  a  merchant  in  New  Harmony,  and 
claimed  the  exclusive  right  to  vend  merchandise  in  that 
town  for  ten  years.  He  complains  in  his  bill  that  he  had. 
been  interrupted  in  the  enjoyment  of  this  exclusive  priv- 
ilege by  the  defendants,  Owen,  Rogers,  and  Moffatt;  and 
prays  an  injunction.  The  defendants,  in  their  answers, 
deny  the  existence  of  the  right  claimed  by  the  complain- 
ant. The  facts  in  the  case,  necessary  to  be  noticed,  are 
as  follows : 

Owen,  one  of  the  defendants,  being  the  owner 
[*302]  in  fee  simple  *of  the  town  of  New  Harmony,  and 
having  a  mercantile  establishment  there,  sold  the 
whole  of  his  merchandise  to  the  complainant,  leased  him 
the  buildings  in  which  the  business  had  been  carried  on, 
and  agreed  in  the  lease  that  he  should  have  the  exclusive 
right  of  keeping  a  store  in  the  town  for  ten  years.  The 
complainant  agreed,  on  his  part,  to  pay  for  the  merchan- 
dise within  a  certain  time ;  and  also  to  pay  a  certain  sum 

(a)  6  Ind.  200. 

(854) 


MAY  TERM,  1830.  302-303 

Taylor  v.  Owen  and  Others. 

for  the  privilege  contracted  for,  and  as  a  rent  for  the 
buildings.  After  the  complainant  had  taken  possession, 
and  had  been  trading  there  free  from  competition  for  sev- 
eral months,  Owen  leased  another  house  and  lot  in  the 
town  for  three  years  to  Rogers,  one  of  the*  other  defend- 
ants, without  any  restriction  as  to  trade,  except  that  he 
should  not  sell  spirituous  liquors.  Rogers  afterwards 
under-let  a  part  of  this  house  to  Moffatt,  the  other  de- 
fendant, free  from  any  restriction ;  and  Moifatt  com- 
menced the  vending  of  merchandise  there.  Previously 
to  the  date  of  his  lease,  Moffatt  had  notice  of  the  contract 
between  Owen  and  the  complainant;  and  Rogers  had 
notice  of  it  also,  before  Moffatt  offered  his  goods  for  sale. 
In  the  course  of  the  proceedings,  some  depositions  were 
suppressed  upon  proof  of  the  deponents  being  interested  ; 
and  a  motion  for  a  continuance  and  to  take  further  depo- 
sitions was  overruled;  the  Court  not  being  informed 
what  was  intended  to  be  proved. 

The  Circuit  Court  dismissed  the  bill. 

The  object  of  this  bill  is  to  obtain  a  perpetual  injunc- 
tion against  Moffatt,  restraining  him  from  the  furthei 
vending  of  merchandise  in  New  Harmony.  The  claim  to 
this  injunction  is  founded  on  the  covenant  of  Owen  that 
the  complainant  should  have,  for  ten  years,  the  exclusive 
right  to  keep  a  store  in  that  town.  The  objection  made 
by  Moffatt  to  the  granting  of  this  injunction  against  him 
is, — that  he  has  the  lawful  and  unrestricted  possession., 
for  a  term  of  years,  of  the  house  and  lot  where  he  is  en 
gaged  in  trade;  and  that  he  has  entered  into" no  contract 
with  any  person  not  to  vend  merchandise  there.  This 
objection  is  supported  by  the  facts  in  the  case ;  and  it  is,  m 
our  opinion,  sufficient  to  prevent  the  injunction  prayed  for. 

The  idea  of  the  complainant  that  the  covenant  in  ques- 
tion was  a  conveyance  to  him  of  the  exclusive  right  of 
vending  merchandise  in  New  Harmony,  can  not  be  sus- 
tained.     Such  a  right  of  the  proprietor  of  real 
[*303]    estate  to  carry  on  trade  upon  his  *premi8e8,  can 

(355) 


303  SUPREME  COURT  OF  mDIANA. 

Taylor  v.  Owen  and  Others. 

not  be  made  the  subject  of  a  separate  conveyance, 
so  as  to  prevent  the  subsequent  holder  of  the  property, 
without  his  own  agreement,  from  pursuing  his  lawful 
business  there.  This  covenant  between  Owen  and  Tay- 
lor is  entirely  of  a  personal  nature.  It  neither  runs  with 
the  land  of  the  covenantor,  nor  does  it  create  any  lien 
thereon,  either  legal  or  equitable.  Had  the  fee-simple  of 
the  premises  occupied  by  Moft'att,  been  sold  and  conveyed 
to  him  by  Owen,  it  appears  to  us  very  clear  that  the  pur- 
chaser's title  could  not  have  been  aftected,  nor  his  rights 
arising  from  ownership  diminished,  by  the  collateral  agree- 
ment alluded  to.  A  lessee  for  years  stands  in  the  same 
situation,  in  this  respect,  as  a  vendee ;  and  if  the  covenant 
before  us  would  not  interfere  with  the  estate  of  the  one, 
it  will  Jiot  with  that  of  the  other.  "We  put  out  of  view 
the  question  of  notice  in  this  case.  We  consider  the  mere 
circumstance  of  a  lessee's  having  notice  of  a  covenant 
like  the  present,  to  be  of  no  more  consequence  to  his  in- 
terest ill  the  premises  than  his  knowledge  of  the  lessor's 
having  contracted  a  debt  would  be.  A  bona  fide  ve]\ dee 
or  lessee  of  real  property,  for  a  valuable  consideration, 
has  nothing  to  do  with  these  personal  contracts. 

Whilst  Owen  had  the  rightful  possession  of  the  whole 
town,  he  had  of  course  a  right  to  a  monopoly  of  the  busi- 
ness. This  monopoly  he  had  it  in  his  power  to  permit 
the  complainant  to  enjoy,  by  not  selling  any  of  the  prop- 
erty to  any  other  person,  nor  leasing  any  of  it  without 
inserting  in  the  leases  the  necessary  restrictions.  In  the 
case  before  us,  however,  Owen  has  thought  proper  to 
lease  one  of  his  houses  and  lots  in  the  town  to  Rogers -for 
three  years,  without  restricting  him  as  to  the  vending  of 
merchandise;  and  Rogers  has  under-let  a  part  of  the 
premises  to  Mofiatt  without  any  restriction.  The  conse- 
quence is  that  Moff'att  has  the  rightful  possession  of  the 
part  of  the  house  he  occupies;  and,  from  the  nature  of 
the  e-tate,  he  has  the  right  to  carry  on  there  any  lawful 
business  he  chooses,  which  is  not  prohibited   by  the  ori- 

(356) 


Y  TERM,  1830.  303-304 

ffatt  and  Others,  on  Appeal, 

is  not  injurious  to  the  premises, 
he  owner  of  the  reversion,  can  not 
)  vending  of  merchandise  there; 
the  complainant,  who  has  no  pre- 
;'hatever  in  the  property.  If  the 
in  and  Taylor,  respecting  the  ex- 
ferred  to,  be  valid — as  to  which  we 
n — Taylor's  remedy  is  by  a  suit  at 
en  for  a  breach  of  contract. 

0  these  proceedings  on  the  ground 
)Ositions,  and  of  a  refusal  to  con- 
■  to  take  other  depositions,  can  not 
ntnesses  whoso  depositions  were 
y  interested ;  and,  on  the  motion 
not  show^n  that  the  depositions  in- 
ild  be  material  in  the  cause. 

cree  is  affirmed  with  costs. 

1  Jadah,  for  the  plaintiff, 
ants. 


.TT  and  Others,  on  Appeal. 
NNiNG  With  Land — What. 

5  for  the  disturbance  of  an  exclu- 
•chandise,  &c.  Plea,  a  lease,  &c. 
md  judgment  for  the  defendants. 
)receding  case  of  Taylor  v.  Oiven 

\  here,  on  behalf  of  the  appellant, 
ener  of  the  land,  could  dispose  of 
'ivilege  appurtenant  to,  or  grow- 
bis  case  he  has,  by  his  covenant 
imself  of  the  right  to  vend  mer- 
)ny;  and  it  is  inquired,  can  Mof- 
(357) 


303  SUPREME  COURT  01 

Taylor  v.  Owen  and  Oi 

not   be    made    the   subject    of    a 
so  as  to  prevent  the  subsequent  1 
without  his   own   agreement,  fron 
business  there.     This  covenant  be 
]or  is  entirely  of  a  personal  nature 
the  land  of  the  covenantor,  nor  ( 
thereon,  either  legal  or  equitable, 
the  premises  occupied  by  Mofl'att, 
to  him  by  Owen,  it  appears  to  us 
chaser's  title  could  not  have  been 
arising  from  ownership  diminished 
ment  alluded  to.     A  lessee  for  y 
situation,  in  this  respect,  as  a  vend 
before  us  would  not  interfere  wi1 
it  Avill  not  with  that  of  the  othei 
the  question  of  notice  in  this  case 
circumstance  of  a  lessee's  havii 
like  the  present,  to  be  of  no  mor 
terest  in  the  premises  than  his  k 
having  contracted  a  debt  would 
or  lessee  of  real   property,  for  s 
has  nothing  to  do  with  these  per 
Whilst  Owen  had  the  rightful 
town,  he  had  of  course  a  right  ti 
ness.     This  monopoly  he  had  i 
the  complainant  to  enjoy,  by  no 
erty  to   any  other  person,  nor  1 
inserting  in  the  leases  the  neces 
case  before   us,  however,  Owen 
lease  one  of  his  houses  and  lots 
three  years,  without  restricting 
merchandise;    and   Roo-ers   has 
premises  to  Moftatt  without  an 
quence  is  that  Moffatt  has  the 
part  of  the  house  he  occupies 
tlie  estate,  he  has  the  right  to. 
business  he  chooses,  which  is  i 

(356) 


MAY  TERM,  1830.  303-304 

Taylor  v.  Moffatt  and  Others,  on  Appeal. 

ginal  lease  and  which  is   not  injurious  to  the  premises. 
Owen  himself,  who  is  the  owner  of  the  reversion,  can  not 
restrain    him   from   the  vending  of  merchandise  there; 
much  less  can  Taylor,  the  complainant,  who  has  no  pre- 
tence to  any  interest  whatever  in  the  property.     If  the 
covenant  between  Owen  and  Ta3'lor,  respecting  the  ex- 
clusive right  referred  to,  be  valid — as  to  which  we 
[*304]    give  no  ^opinion — Taylor's  remedy  is  by  a  suit  at 
law  against  Owen  for  a  breach  of  contract. 
The  objection  made  to  these  proceedings  on  the  ground 
of  a  suppression  of  depositions,  and  of  a  refusal  to  con- 
tinue the  cause  in  order  to  take  other  depositions,  can  not 
be  supported.      The  witnesses  whoso    depositions  were 
suppressed  were  directly  interested ;   and,  on  the  motion 
for  a  continuance,  it  is  not  shown  that  the  depositions  in- 
tended to  be  taken  would  be  material  in  the  cause. 
Per  Curiam. — The  decree  is  affirmed  with  costs. 

Hall,  Dewey,  Law  and  Judah,  for  the  plaintiff. 
Howk,  for  the  defendants. 


Taylor  ?'.  Moffatt  and  Others,  on  Appeal. 

Covenants  Running  With  Land — What. 

ACTION  on  the  case  for  the  disturbance  of  an  exclu- 
sive right  to  vend  merchandise,  &c.  Plea,  a  lease,  &c. 
Demurrer  to  the  plea,  and  judgment  for  the  defendants. 
For  the  facts  see  the  preceding  case  of  Taylor  v.  Owen 
and  others. 

Scott,  J. — It  is  alleged  here,  on  behalf  of  the  appellant, 
that  Owen,  being  the  owner  of  the  land,  could  dispose  of 
the  soil  itself,  or  any  privilege  appurtenant  to,  or  grow- 
ing out  of  it;  that  in  this  case  he  has,  by  his  covenant 
with  Tavlor,  divested  himself  of  the  right  to  vend  mer- 
chandise in  N^ew  Harmony;  and  it  is  inquired,  can  Mof- 

(357) 


304-305    SUPREME  COURT  OF  INDIANA. 

Taylor  v.  Moffatt. 

fatt  possess  greater  privileges  than  his  lessor?  To  this  it 
may  be  replied,  that  an  incorporeal  hereditament  may  be 
conveyed  to  one,  and  the  right  of  soil  to  another,  and 
after  a  grant  of  the  incorporeal  hereditament,  a  convey- 
ance of  the  land  to  which  it  is  appendant  is  subject  to 
that  grant.  But  the  privilege  of  vending  goods  is  a  right 
purely  personal;  it  is  not  appended  to  the  land  or  grow- 
ing out  of  it;  and  when  Owen  covenanted  with  Taylor 
that  he  should  have  the  exclusive  right  to  vend  mer- 
chandise in  New  Harmony,  he  did  not  by  that  covenant 
strip  his  land  of  any  of  its  appurtenances.  As  soon  as 
Moffatt  obtained  a  lawful  possession  of  the  premises  he 
occupies,  he,  as  a  free  man,  brought  his  personal  rights 
into  that  place,  as  appendant  to  his  person,  and  not  to  the 

land,  and  as  long  as  that  possession  continues,  he 
[*305]    may  lawfully  exercise  those  *rights,  unaffected 

and  unrestrained  by  any  contract  or  agreement 
to  which  he  is  not  a  party.  We  are  clearly  of  opinion 
that  the  appellant  has  no  ground  of  action. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 


Taylor  i'.  Moffatt. 

Official  Acts— Liability  For— Justification.— If  a  judicial  officer, 
whether  possessed  of  a  general  or  a  special  jurisdiction,  act  erroneously  or 
even  oppressively  in  the  exercise  of  his  authority,  an  individual  at  whose 
suit  he  acts  is  not  answerable,  as  a  trespasser,  for  the  error  or  misconduct 
of  the  officer.  But  if  a  judicial  officer  whose  jurisdiction  is  special  and 
limited,  transcend  his  authority  and  act  in  a  case  of  which  he  has  no 
cognizance,  his  proceedings  are  coram  non  judice,  and  no  person  can  justify 
under  them. 

Arrest— Justification — Jurisdiction  of  Court. — The  defendant,  in  an 
action  of  false  imprisonment,  justified  under  a  writ  of  attachment,  order- 
ed, at  his  instance,  by  a  Circuit  judge.  The  writ  was  issued  against  the 
plaintiff,  for  a  contempt  in  disobeying  a  writ  of  injunction  granted  by  the 
judge.  The  injunction  was  granted,  and  the  writ  of  attachment  was  or- 
dered and  issued,  in  vacation.     Held,  that  the  defence  was  insufficient; 

(358) 


MAY  TERM,  1830.  305-306 

Taylor  i:  Moflfatt. 

the  judge  having  no  authority,  in  vacation,  to  order  the  writ  of  attach- 
ment (a). 

ERROR  to  the  Knox  Circuit  Court. 

HoLMAN,  J. — Taylor,  claiming  the  exclusive  privilege  of 
vending  merchandise  in  the  town  of  New  Harmony,  filed 
a  bill  against  Mofiatt  and  others,  charging  Moffatt  with  a 
violation  of  this  privilege  by  vending  merchandise  in 
said  town;  and  praying  an  injunction.  An  injunction, 
agreeably  to  the  prayer  of  the  bill,  was  aw^arded  by  the 
president  judge  of  the  circuit  Court,  in  vacation.  The 
writ  of  iiijinicrion  having  been  served  upon  Moffatt,  and 
it  having  been  made  to  appear  to  the  satisfaction  of  the 
judge,  by  the  affidavits  of  Taylor  and  others,  that  Moffatt 
had  disobeyed  the  writ  and  continued  to  vend  merchan- 
dise as  formerly,  the  judge,  by  his  order,  directed  the 
clerk  of  the  Circuit  Court  to  issue  an  atta«hment  against 
Moffatt  for  his  contempt  of  the  writ  of  injunction.  The 
attachment  w^as  issued,  and  Moffatt  was  immediately  com- 
mitted to  prison  until  the  further  order  of  the  Court. 
For  this  commitment,  he  brought  this  action  of  false  im- 
prisonment against  Taylor,  at  whose  instance  the  attach- 
ment had  been  ordered.  Taylor,  together  with  a  plea  of 
not  guilty,  pleaded  the  proceedings  in  chancery,  the 
judge's  order,  the  attachment,  &c.,  in  justification ; 
[*306]  to  w^hich  *Moftatt  demurred  and  had  judgment. 
The  jury,  on  the  trial  of  the  general  issue,  as- 
sessed the  plaintiff's  damages  at  3,000  dollars;  and  judg- 
ment was  given  on  the  verdict. 

The  merits  of  the  defence  made  by  Taylor  depend  on 
the  authority  of  the  judge  to  order  the  attachment  for 
the  contempt.  If  the  judge  was  acting  within  his  juris- 
diction, the  plea  of  Taylor  was  a  bar  to  the  action,  with- 
out any  reference  to  the  manner  in  which  the  judge's 
authority  was  exercised.  Much  has  been  said,  in  this 
case,  about  the  ordering  of  the  attachment  without  giv- 

(a)  35  Ind.  285. 

(359) 


306-307   SUrREME  COURT  OF  INDIAI^A. 

Taylor  v.  Moffatt. 

ing  Moffatt  an  opportunity  of  being  heard,  and  about  the 
commitment  for  an  unlimited  time;  but  we  conceive  that 
these  are  subjects  that  can  not  affect  the  merits  of  Tay- 
lor's defence.  For  if  a  judicial  officer,  whether  possessed 
of  a  general  or  a  special  jurisdiction,  act  erroneously,  or 
even  oppressively,  in  the  exercise  of  his  authority,  an  in- 
dividual at  whose  suit  he  acts  is  not  answerable,  as  a  tres- 
passer,  for  the  error  or  misconduct  of  the  officer.  But  if 
a  judicial  officer,  whose  jurisdiction  is  special  and  limited, 
transcend  his  authority,  and  act  in  a  case  of  which  he  has 
no  cognizance,  his  proceedings  are  coram  non  judice,  and 
no  person,  much  less  a  suitor,  can  justify  under  them. 
Nor  do  we  consider  it  necessary  to  determine  a  question 
that  has  been  raised  in  this  case,  as  to  the  authority  of  a 
president  judge,  in  vacation,  to  award  injunctions  for  any 
other  purpose  except  to  enjoin  proceedings  at  common 
law.  But  passing  this  question,  and  fixing  our  attention 
on  the  power  of  the  president  judge,  in  vacation,  to  order 
an  attachment  to  enforce  obedience  to  a  writ  of  injunc- 
tion which  he  had  previously  ordered,  we  find  before  us 
a  question,  in  the  determination  of  which  we  are  but  in- 
directly aided  either  by  English  or  American  decisions. 

In  England,  and  in  many  of  the  United  States,  the 
Courts  of  chancery  are  distinct  from  the  common-law  tri- 
bunals, and  are  continually  open  for  the  exercise  of  any 
necessary  part  of  their  jurisdiction.  With  us,  the  Cir- 
cuit Court,  with  a  general  common-law  jurisdiction,  pos- 
sesses all  the  chancery  powers  known  to  our  law;  but  it 
is  open  only  at  stated  periods  fixed  by  law,  and  can  take 
cognizance  of  no  subject  at  any  other  time.  This  Court, 
at  its  regular  terms,  agreeabl}^  to  the  act  of  assembly  by 
which  it  is  organized,  possesses. a  general  authority  as  a 

Court  of  chancery  to  issue  any  process  that  may 
[*307]    be  necessary  *for  canning  its  powers  into  eftect, 

according  to  the  usages  of  Courts  of  cliancerv; 
and  the  president  judge,  in  the  absence  of  the  two  asso- 
ciates, is  competen.t  to  hold  this  Court.     Had  the  g-rant 

(360) 


MAY  TERM,  1830.  307 


Tavlor  r.  Moffatt. 


of  chancery  powers  terminated  here,  neither  the  president 
indge,  nur  the   two  associates,  nor  all  together,  would 
have  possessed  any  chancery  powers  whatever  in  vaca- 
tion;  but,  in  order  to  a  proper  distribution  of  justice,  it 
was  considered  necessary  that  there  should  be,  at  all  times, 
a  tribunal  that  might  act  in  cases  of  emergency,  both  at 
common   law  and   in   chancery.      Certain   powers  were, 
therefore,  conferred  on  the  judges  individually,  and  cer- 
tain others  on  the  president  judge  or  the  two  asssociates. 
Among  the  latter  is  the  power  of  awarding  injunctions. 
iSTow  it  may  be  considered   as  a  general  rule,  that  a 
grant  of  power  to  a  Court,  or  a  judge,  to  award  process, 
includes  a  power  to  enforce  obedience  to  that  process  by 
punishing  disobedience.     Hence,  a  Court  of  chancery  ex- 
ercises a  general  authority  to  issue  attachments  to  punish 
contempts  of  its  process ;  and  there  is  no  doubt  but  that 
our  Circuit  Courts  possess  this  power;  but  they  can  ex- 
ercise it  in  term  time  only.     The  president  judge,  when 
sitting  as  a  Circuit  Court,  possesses  this  power  in  the 
fullest  extent  known  to  our  law.     His  jurisdiction  is  then 
considered  of  a  general  and  unlimited  nature.     But  when 
he  is  acting  in  vacation  his  situation  is  difterent;  his  juris- 
diction is  special  and  limited.     He  can  not  be  strictly  said 
to  be  acting  as  a  Court  of  chancery,  inasmuch  as  the  two 
associates,  in  the  presence  of  each  other,  possess  as  exten- 
sive powers  as  he  does ;  and  they  are  not  even  in  term 
time  competent  to  hold  a  Court  of  chancery.     So  that  it 
may  be  questioned  whether  he.  when  adjudicating  on  the 
subject-matter  of  an  injunction  regularly  brought  before 
him,  possesses  any  further  powe.s  than   those  specially 
conferred  by  the  act  of  assembly  regulating  the  proceed- 
ings in  granting  injunctions;  and  such  as  may  be  neces- 
sary to  prevent  his  being  disturbed  while  he  is  thus  oiSci- 
ating.     But   when   he    has    completed    an   order   for    an 
injunction,  and  has  closed  his  sitting,  his  power  over  the 
subject  m-ust  be  at   an  end.     The  case  has  passed  from 
ill  III  into  the  Circuit  Court,  and  obedience  to  the  writ  of 

(361) 


307-308     SUPREME  COURT  OF  ^DIANA. 

Taylor  v.  Moffatt. 

iuj unction  is  to  be  enforced  in  the  same  way,  us  if  it  had 
been  awarded  by  the  Circuit  Court.     He  has  no  time 

nor  place  given  liini  by  the  law,  when  or  where 
[*808]    he  can  "^judicially  take  any  further  notice  of  the 

subject,  until  the  next  term  of  the  Circuit  Court; 
but  he  is  in  the  same  situation,  as  to  an  exercise  of  chan- 
cery powers,  as  the  Circuit  Court  is  in  vacation.  Nor 
does  this  view  of  the  case  impose  any  peculiar  hardship 
upon  suitors.  A  complainant  who  has  thus  obtained  an 
injunction  is  in  the  same  situation  as  if  he  had  obtained 
it  in  open  Court.  If  the  writ  is  disobeyed,  he  must  wait 
until  the  next  term  of  the  Circuit  Court  before  he  can 
obtain  process  to  enforce  obedience  to  the  writ,  or  to  pun- 
ish an  individual  who  may  have  disobeyed  it. 

In  this  case,  as  we  learn  from  the  plea  of  Taylor,  the 
judge  awarded  the  injunction  at  his  chambers,  on  the 
29th  of  September,  1827.  The  writ  of  injunction  was 
issued  on  the  1st  of  October;  the  affidavits  show  a  vend- 
ing of  merchandise  by  Moffatt  on  the  4th,  5th  and  6th  of 
the  latter  month;  and  the  order  for  the  attachment  is 
dated  at  the  judge's  chambers  on  the  8th.  So  that,  from 
the  foregoing  view  of  the  subject,  the  judge  had  no  juris- 
diction of  the  case  at  the  time  he  ordered  the  attachment. 
The  order  was  a  nullity,  and  Taylor  could  not  justify 
under  it.  The  plea  was  no  bar  to  the  action,  and  the  Cir- 
cuit Court  very  properly  sustained  the  demurrer.  See  an 
extensive  view  of  the  doctrine  of  chancery  attachments 
in  Yates  v.  The  People,  6  Johns.  R.  337,  and  Yates  v.  Lan- 
sing, 9  Johns.  R.  395. 

It  was  said  by  the  plaintiff's  counsel,  in  the  argument 
of  this  case,  that  the  damages  are  excessive,  and  that  a 
new  trial  ought  to  have  been  awarded;  but  the  statement 
in  the  transcript  of  the  record,  that  a  new  trial  was  ap- 
plied for  in  the  Circuit  Court  and  refused,  is  no  part  of 
the  record,  not  having  been  made  so  by  a  bill  of  excep- 
tions ;  and  we  have  taken  no  notice  of  it. 

(362) 


MAY  TEKM,  1830.  308-309 

Hobson  V.  Doe,  on  the  Demise  of  Harper,  on  Appeal. 

Per  Curiam. — The  judgment  is  affirmed,  with  1  per  cent. 
damages  and  costs. 

HdU  Dewey,  Law,  and  Judah,  for  the  plaintiff. 
Howk,  tor  the  defendant. 


Hobson  v.  Doe,  on  the  Demise  of  Harper,  on  Appeau 

Evidence — Testimony  of  Absent  Witness. 

A  PARTY  is  not  permitted  to  prove  what  one  of  his 
witnesses  swore  to  on  a  former  trial  of  the  cause,  until 
he  has  proved  that  the  witness  is  dead  (1). 

[*309]  *(1)  "  What  a  witness,  since  dead,  has  sworn  on  trial  between  the 
same  parties,  may  be  given  in  evidence  either  from  the  judge's 
notes,  or  from  notes  that  have  been  taken  by  any  other  person,  who  will 
swear  to  their  accuracy,  or  it  may  be  proved  by  any  person  who  will 
swear  from  his  memory  to  its  having  been  given.  Per  Mansfield. 
C  J.,  Mayor  of  Doncasler  v.  Day,  3  Taunt.  262  ;  Slrutt  v.  Bovingdon,  5  Esp. 
56.  The  witness  must  be  prepared  to  prove  the  verv  words  of  the  former 
witness.  Ennis  v.  Donisthome,  1  Phill.  Ev.  200;  4  f.  K.  290."  Roscoe  on 
Ev.  58.'  See,  also,  to  the  same  eflfect,  Melvm  v.  Whitiny,  7  Pick.  79.  It  is 
held  in  Virginia  that  it  is  not  necessary  to  prove  the  very  uords  of  the  de- 
ceased witness,  but  that  it  is  sufficient  to  prove  the  substance  of  his  evi- 
dence. Caton  V.  Lenox,  5  Rand,  31.  The  cases  cited  in  the  last-named 
case,  not  mentioned  above,  are  Bucku'orth^s  case,  T.  Raym.  170;  Pykev. 
Crouch,!  Ld.  Ravm.  730;  Co/cer  v.  Fancell,  2  FAY  ms.  563 ;  White  y.Kib- 
ling,  11  Johns.  R.'l28;  Miles  v.  O'Hara,  4  Binn.  108. 


Rench  V.  Doe,  on  the  Demise  of  Webster,  in  Error. 

Ejectment — Title- Bond. 

A  PERSON  claiming,  bj  virtue  of  a  title-bond  only, 
the  premises  for  which  an  action  of  ejectment  was  brought, 
applied  to  be  made  a  defendant  in  the  cause.  Held,  that, 
as  the  claim  was  merely  of  an  equitable  nature,  the  appli- 
cation could  not  be  granted.  Smith  v.  Allen,  1  Blackf. 
22;  Lessee  of  Spencer  v.  Marckel,  2  Ham.  264. 

(363) 


309-310    SUPREME  COURT  OJ^^  INDIANA. 


Howk  I.  Kimball  and  Another. 


HowK  y.  Kimball  and  Another. 

Judgment — Payment  and  Assignment  of. — If   a  debtor  pay  his  judg- 
ment-creditor a  sum  equal  to  the  amount  of  the  judgment,  and  thereby 
cause  the  judgment  to  be  assigned  as  a  payment  to  another  of  his  credi-. 
tors,  the  transaction  does  not  discharge  the  judgment,  but  the  same  con- 
tinues valid  in  the  hands  of  the  assignee. 

ERROR  to  the  Clark  Circuit  Court. 

HoLMAN,  J. — Kimball  and  Gerry  each  held  a  judgment 
against  Faulkner  and  Jacob  Teeple.  Kimball's  judg- 
ment was  the  eldest,  and  was  replevied  with  Moore  as 
replevin-surety  :  Gerry's  was  afterwards  replevied  with 
Moore  and  Anderson  as  sureties.  A  lot  in  Charlestown, 
the  property  of  Jacob  Teeple,  was  executed  and  sold  on 
Kimball's  judgment,  and  Kimball  became  the  purchaser; 
leaving  about  50  dollars  of  his  judgment  unsatisfied. 
It  seems  that,  notwithstanding  the  sale  of  the  said  lot, 

Teeple  still  held  a  claim  to  it,  which  Kimball 
[*810]    was  ^disposed  to  extinguish;  and,  in  considertioii 

of  a  deed  by  said  Teeple  relinquishing  to  Kimball 
all  said  Teeple's  claim  to  said  lot,  Kimball  paid  the  said 
Teeple  the  sum  of  100  dollars,  and  assigned  to  John 
Teeple,  son  of  the  said  Jacob,  the  balance  still  due  on  his 
said  judgment.  After  this  transaction,  ah  execution  is- 
sued on  Gerry's  judgment,  which  was  levied  on  a  tract  of 
land,  the  property  of  Moore,  the  surety  in  both  replevin- 
bonds;  which  tract  of  land  was  sold  by  the  sheriff  on  said 
execution,  and  Howk,  the  complainant,  became  the  pur- 
chaser. After  this  purchase,  John  Teeple  caused  an  exe- 
cution to  be  issued  for  the  balance  due  on  Kimball's  judg- 
ment, and  had  said  execution,  levied  on  the  said  tract  of 
land;  claiming  a  lien  on  said  land  by  virtue  of  the  elder 
judgment.  Howls — contending  that  the  transfer  of  the 
judgment  from  Kimball  to  John  Teeple  was  in  fact  and 
equity  a  transfer  to  Jacob  Teeple.  and  consequently  a  dis- 
charge of  said  judgment,  and  that  the  holding  up  of  the 

(364) 


MAY  TERM,  1830.  310-311 

Howk  ('.  Kiiuball  and  Another. 

same  as  unsatistied,  and  issuing  an  execution  thereon,  was 
a  fraud  upon  Moore,  the  surety,  and  the  creditors  of  Jacob 
Teeple — tiled  his  bill  in  chancery,  making  Kimball  and 
the  two  Teeples  defendants,  praying  an  injunction,  &c. 
The  defendants  answered,  admitting  the  general  state- 
ments in  the  bill,  but  denying  fraud,  and  alleging  that 
the  transfer  of  the  judgment  from  Kimball  to  John  Teeple 
was  in  payment  of  a  debt  due  from  Jacob  Teeple  to  John 
Teeple;  said  John  having  paid  52  or  53  dollars  for  the 
benefit  of  said  Jacob.  A  general  replication  was  filed. 
The  cause  was  then  heard  in  the  Circuit  Court  on  bill, 
answers  and  exhibits;  and  the  bill  was  dismissed. 

The  only  question  here  presented  is,  was  Kimball's  judg- 
ment discharged  by  Jacob  Teeple  in  his  contract  with 
Kindjall  ?  In  settling  this  question,  it  must  be  taken  that 
this  transaction  between  Kimball  and  the  two  Teeples 
was  conducted  with  good  faith ;  the  charge  of  fraud  in 
the  bill  being  expressly  denied  by  all  the  answers.  So 
that  we  are  not  to  presume  fraud,  unless  it  arises  by  in- 
tendment out  of  the  premises.  It  is  also  evident  that 
Jacob  Teeple  did  not  intend  to  discharge  the  judgment 
in  his  contract  with  Kimball.  So  that,  if  the  judgment 
is  to  be  considered  as  discharged,  it  must  be  on  the  ground 
that  Jacob  Teeple  could  not  stipulate  for  a  transfer  of  the 
judgment  to  a  third  person,  and  pay  the  consid- 
[*311]  eration  of  that  transfer,  without  *necessarily  dis- 
charging the  judgment,  and  thereby  defeating  the 
intention  of  his  stipulation. 

Taking  this  transaction  in  its  simplest  form,  and  giving 
it  all  its  force  in  behalf  of  the  complainant,  let  us  con- 
sider it  as  if  Jacob  Teeple  had  paid  to  Kimball  a  sum 
equal  to  the  full  amount  due  on  the  judgment,  as  the  con- 
sideration of  the  transfer  from  Kimball  to  John  Teeple. 
'Now  it  is  well  settled  that  a  payer  may  direct  the  man- 
ner in  which  his  payments  are  to  be  applied;  and  there 
can  be  no  question  but  that  while  Kimball  held  the  judg- 
ment against  Jacob  Teeple,  said  Jacob  might  have  paid 

(365) 


311-312   SUPREME  COURT  OF  INDIANA. 

Howk  V.  Kimball  and  Another. 

him  several  sums  of  money  for  various  purposes,  without 
discharging  the  judgment.  If  Jacob  Teeple  had  paid 
him  a  sum  equal  to  the  amount  due  on  the  judgment,  to 
be  applied  to  some  specific  purpose,  and  he  had  so  applied 
it,  it  could  not  be  pretended  that  the  judgment  would 
have  been  thereby  discharged.  If,  for  example  Jacob 
Teeple  had  placed  money  in  his  hands  to  be  paid  over  to 
John  Teeple,  and  had  paid  it  accordingly,  the  judgment 
Avould  have  been  aflected  by  that  transaction.  In  this 
view  of  the  case  we  are  supposing  that  Kimball  was  to 
pay  Jacob  Teeple  150  dollars  for  the  lot;  100  dollars  to 
be  paid  to  Jacob  Teeple  himself,  and  the  balance  to  sat- 
isfy a  debt  which  he  says  he  owed  to  John  Teeple,  or  at 
least  to  secure  it  by  a  judgment.  The  payment  of  the 
judgment  formed  no  part  of  the  stipulations.  The  trans- 
fer of  it,  as  so  much  money,  from  Kimball  to  John  Teeple, 
was  no  more  like  a  discharge  of  it,  than  if  Kimball  had 
paid  the  money  to  Jacob  Teeple,  and  Jacob  had  paid  it 
to  John,  and  John  had  purchased  the  judgment  from 
Kimball  with  it;  which  might  have  been  done  in  good 
faith,  and  have  produced  the  same  result  as  has  been  pro- 
duced by  the  agreement  under  consideration.  So  that  if 
Jacob  Teeple  did  really,  in  relinquishing  his  claim  to  the 
lot  in  Charlestown,  pay  to  Kimball  a  price  equivalent  to 
the  balance  due  on  the  judgment,  as  the  consideration  of 
the  transfer  from  Kimball  to  John  Teeple,  yet  as  the 
judgment  never  became  his,  and  as  he  did  not  intend  to 
discharge  it,  it  never  was  discharged  either  in  law  or 
equity.  We  see  nothing  in  the  transaction  more  unfair 
than  the  preferring  one  creditor  to  another.  It  seems 
that  Jacob  Teeple  had  a  price  in  his  hands,  by  which 
he  might  have  discharged  the  judgment,  and  exoner- 
ated his  surety,  Moore,  and  also  furthered  his  creditor, 

Gerry,  in  the  collection  of  his  judgment;  but  he 
[*312]    *preferred  to  let  the  judgment  remain  unsatisfied, 

in  order  to  secure  a  debt  which  he  says  he  owed 
to  his  son.     But  neither  Moore  nor  Gerry  has  any  greater 

(366) 


MAY  TERM,  1830.  312 


Howk  V.  Kimball  and  Another, 


reason  to  complain,  that  Jacob  Teeple  did  not  pay  oti"  the 
judgment,  instead  of  stipulating  for  its  transfer,  than 
they  have  to  comphiin  that  he  did  not  pay  it  off  with  a 
part  of  the  100  doUars  he  received  from  Kimball,  or  that 
he  did  not  apply  the  balance  of  the  money  he  obtained 
from  Kimball,  in  lessening  the  judgment  of  Gerry  and 
the  responsibility  of  Moore. 

But  it  is  not  conclusive  in  this  case  that  Kimball  re- 
ceived, or  supposed  he  received,  a  full  equivalent  for  this 
judgment  as  a  consideration  of  the  transfer.  He  too 
might  have  had  his  preferences;  and  he  might  have  been 
willing  to  transfer  the  judgment  to  John  Teeple,  for  a 
smaller  consideration  than  that  which  would  have  in- 
duced him  to  enter  a  discharge  of  the  judgment  in  favor 
of  Jacob  Teeple.  Besides  this,  the  means  by  which 
Jacob  Teeple  procured  this  transfer  to  his  son,  as  well  as 
the  100  dollars  to  himself,  seem,  on  the  part  of  Kimball, 
to  have  been  wholly  gratuitous.  As  far  as  we  are  in- 
formed, Kimball,  by  his  purchase  at  sheriff's  sale,  bad  as 
complete  a  title  to  the  lot  in  Charlestown  as  either  the 
law  or  Jacob  Teeple  could  give  him.  So  that  Jacob 
Teeple  had  no  claim  to  the  lot  either  in  law  or  equity. 
And  neither  law  nor  equity  requires  a  resort  to  rigid 
constructions  in  search  of  fraud  in  the  disposition 
of  a  fund  which  seems  to  have  been  obtained  from  Kim- 
ball more  as  a  matter  of  favor  than  as  a  matter  or'  richt. 

We,  therefore,  discover  nothing  fraudulent  in  the  ti-ans- 
fer  of  this  judgment  to  John  Teeple;  nothing  to  prevent 
him  from  collecting  the  balance  due  upon  it.  Conse- 
quently we  see  no  reason  for  reversing  the  decree  of  the 
Circuit  Court. 

Per  Curiam. — The  decree  is  affirmed  with  costs. 

Howk,  for  the  plaintiflf. 

Thompson,  for  the  defendants. 


(367) 


812-313   SUPREME  COURT  OF  INDIANA. 


Shewel  v.  Givan, 


ShEWEL    V.    GiVAN. 

Interest — Open  Accounts. — It  is  a  general  rule  that  interest  is  not  al- 
lowable on  the  open  unliquidated  accounts  of  merchants. 

[■■'313]  Custom — Foreign  State — How  Proven. — ^'Witnesses  are  not  ad- 
missible to  jJrove  a  custom  of  merchants  in  any  city  of  another  state 
allowing  them  to  charge  interest  on  their  accounts,  when  the  Courts  of 
that  state  have  refused  to  recognize  the  custom. 

Interest — Instruction. — Interest  was  charged  by  the  plaintiff  on  an  ac- 
count for  goods  sold  for  which  he  sued.  Held,  that,  all  the  evidence  not 
being  shown,  he  could  not,  in  error,  complain  of  the  instructions  to  the 
jury,  that  they  might  allow  interest  or  not  at  their  discretion. 

ERROR  to  the  Marion  Circuit  Court. — Assumpsit  by 
Shewel  against  Givan.  The  defendant  pleaded,  inter  alia, 
non-assumpsit  except  as  to  a  certain  sum,  and  as  to  that 
a  tender.     Verdict  and  judgment  for  the  defendant. 

HoLMAN,  J. — Assumpsit  for  goods  sold  and  delivered. 
Several  pleas,  one  of  which  is  a  tender  and  refusal  of  150 
dollars.  The  following  bill  of  exceptions  shows  the  state 
of  the  case  before  the  Circuit  Court:  "On  the  trial  of 
this  cause,  the  plaintiff  proved  the  sale  and  delivery  of  a 
bill  of  goods  at  Philadelphia  to  the  defendant,  some  time 
in  February,  1820,  amounting  to  347  dollars  and  47  cents, 
on  a  credit.  It  was  also  proved  that  the  following  account, 
to  wit,  Mr.  James  Givan  to  Tho  Shewel,  Dr.  1820,  Feb. 
28.  To  merchandise  at  6  mo.  $347.37.  March  6,  ditto, 
$165.14.  Interest  up  to  Jan.  1827,  $194.54— $707.05. 
Cr.  1821,  Aug.  15,  By  cash.  $131.97.  1822,  Aug.  22,  ditto, 
$128.13.  182^6.  Jan.  13,  ditto,  $76.44.  Interest  up  to 
Jan.  1827,  $80.37.  Balance,  $290.14—707.05.  Dr.  1827, 
Jan.  2,  To  balance,  $290.14.  Interest.  Cr.  1829,  April  9, 
By  cash,  $53.00.  Interest— Thos.  Shewel,  Philad.,  was 
shown  to  the  defendant,  who  remarked  that  it  was  well, 
or  right,  or  made  some  such  remark ;  but  that  the  plaintift' 
must  call  on  his  son,  John  Givan,  who  had  undertaken  to 
pay  it,  and  that  he  the  defendant  had  nothing  more  to  do 
with  it.  The  said  Givan  also  told  Mr.  Fletcher,  that  he 
had  seen  the  said  account  and  that  it   was  correct.     The 

(368) 


MAY  TERM,  1830.  313-314 

Shewel  v.  Givan. 

plaintiff  then  introduced  two  of  the  merchants  of  India- 
napolis, to  prove  that  it  was  the  custom,  in  Philadelphia, 
for  sellers  to  charge,  and  buyers  to  pay,  interest  on  the 
amount  unpaid  on  such  bills  of  merchandise  after  thev 
became  due;  which  evidence  was  objected  to  by  the  de- 
fendant, and  the  objection  was  sustained  by  the  Court. 
To  this  opinion  of  the  Court  the  plaintiff"  excepts.  The 
plaintiff  moved  the  Court  to  instruct  the  jury,  that  inter- 
est should  be  allowed  on  the  above  account  after  it  became 
payable;  which  instruction  the  Court  refused  to  give:  but 

they  instructed  the  jury,  that  it  was  discretionary 
[*314]    with    *them   to    allow    interest   or    not,    as    they 

should  think  proper  under  all  the  circumstances 
of  the  case  ;  which  instruction  was  also  excepted  to  by  the 
plaintiff"."  The  jury  found  for  the  defendant.  Amotion 
for  a  new  trial  was  made  and  overruled,  and  judgment 
given  on  the  verdict  (1). 

The  errors  assigned,  and  principally  relied  on,  for  the 
reversal  of  this  judgment  are,  the  refusal  of  the  Circuit 
Court  to  admit  evidence  of  the  custom  of  the  merchants 
of  Philadelphia,  relative  to  interest  on  their  accounts  ;  and 
the  instructions  given  to  the  jury,  that  it  was  discretiona- 
ry with  them  to  allow  interest  or  not,  as  they  should  think 
proper  under  all  the  circumstances  of  the  case.  ISTeither 
of  these  positions  can  be  supported  by  authority.  As  a 
general  rule,  interest  is  not  allowed  on  an  open,  unliqui- 
dated account.  Blaney  v.  Hendrick,  3  Wils.  205  ;  De 
HaviUand  v.  Bowerbank,  1  Camp.  R.  50 ;  Newell  v.  Gris- 
7vold,  6  Johns.  R.  45 :  Henry  v.  Bisk,  1  Dall.  265 ;  R.  C. 
1824,  p.  227.  But  admitting  the  general  rule,  the  plain- 
tiff" claimed  a  right  of  showing,  by  witnesses,  that  the 
custom  of  merchants  in  Philadelphia  is  otherwise.  What- 
ever doubts  might  be  originated  by  this  claim,  if  we  did 
not  know  the  law  of  Pennsylvania  on  this  subject,  yet  no 
possible  doubt  can  exist,  when  we  know,  b}'  repeated  de- 
cisions, that  the  laws  of  that  state  are  in  accordance  with 
the  general  rule  here  laid  down.  See  the  above  case  of 
Vol  II.— 24  (369) 


314-315    SUPREME  COURT  OF  INDIANA. 

Shewel  v.  Givan. 

Henry  v.  Risk  ;  and  also  the  cases  of  Delaware  In.  Co.  v. 
Delaiinie,  3  Binti.  301;  Crawford  v.  Willing.  4  1) aW.  2S6; 
Obermyer  v.  Nichols,  6  Biiin.  159.  Not  only  is  such  the 
general  law  of  Pennsylvania,  but  when  an  attempt  was 
made  in  that  state,  in  the  case  of  Henry  v.  Bisk,  to  set  up 
this  custom  of  the  merchants  of  Philadelphia  to  allow  in- 
terest in  cases  similar  to  this,  it  was  repelled  in  the  fol- 
lowing language  of  Chief  Justice  M'Kean":  "  The  point 
has  been  repeatedly  determined  otherwise  in  this  Court 
as  well  as  in  the  Courts  of  England,  and  therefore  wit- 
nesses can  not  be  admitted  to  contradict  the  established 
principles  of  the  law."  The  instructions  given  to  the 
jury,  that  it  was  discretionary  with  them  to  allow  interest 
or  not,  as  they  should  think  proper  under  all  the  circum- 
stances of  the  case,  appear  to  us  to  be  unexceptionable ; 
inasmuch  as  when  we  apply  the  foregoing  general  rule  of 
law,  with  all  its  known  exceptions,  and  the  act  of  assem- 
bly regulating  interest  in  this  slate,  to  such  facts  as  the 
jury  were  necessarily  bound  to  find  from  the  evi- 
[^315]  dence  in  this,  we  can  *not  say  that  such  a  case  is 
presented,  as  peremptorily  required  tlie  jury  to 
allow  any  more  interest  on  this  account,  than  was  ten- 
dered by  the  defendant  and  brought  into  Court. 

The  motion  for  a  new  trial  because  the  verdict  was  con- 
trary to  evidence  need  not  be  considered,  as  it  is  not  said 
in  the  bill  of  exceptions  that  we  have  all  the  evidence 
that  was  before  the  jury. 

Per  Curiam. — The  judgment  is  afiirmed  with  costs. 

Fletcher  and  Merrill,  for  the  plaintiff. 

Brown,  for  the  defendant. 

(1)  Form  of  the  verdict,  in  such  case,  for  the  defendant:  The  jurors 
&c.,  as  to  the  first  issue  within  joined  between  the  said  parties-,  say  upon 
their  oath,  that  the  said  James  Givan  did  not  undertake  or  promise  to  an 
amount  beyond  the  sum  of  150  dollars  within  mentioned,  in  manner  and 
form  as  the  said  Thomas  Shewel  hath  within  in  that  behalf  alleged  ;  and 
as  to  the  last  issue  within  joined  between  tlie  said  parties,  the  jurors  afore- 
said, upon  their  oath  aforesaid,  say,  that  the  said  James  Givan  did  tender 
and  offer  to  pay  to  the  said  Thomas  Shewel,  the  said  sum  of  150  dollars, 
parcel  of  the  several  sums  of  money  in  the  said  declaration  within  men- 

(370) 


MAY  TERM,  1830.  315-316 


Pence  and  Another,  Administrators,  v.  Smock. 


tioncd  in  manner  and  form  as  the  said  James  Givan  hath  within  in  that  be- 
half alleged.     Arch.  Forms,  146,  147. 

The  judgment  for  the  defendant,  on  such  a  verdict,  is  the  same  as  in  or- 
dinary cases,  where  there  is  but  one  issue,  viz:  that  the  plaintiff  take  noth- 
ing by  his  writ,  &c. ;  and  that  the  defendant  recover  his  costs,  &c.     lb. 

Form  of  the  verdict,  in  such  case,  for  the  plaintifii":  The  jurors,  &c.,  say 
upon  their  oatii  that  the  said  James  Givan  did  undertake  and  promise  to 
an  amount  beyond  ttie  sum  of  150  dollars  by  the  said  James  Givan  within 
in  that  behalf  alleged,  that  is  to  say,  to  the  amount  of  250  dollars,  parcel 
of  the  several  sums  of  money  in  the  said  declaration  within  mentioned,  in 
manner  and  form  as  the  said  Thomas  Shewel  hath  within  complained 
against  him;  and  they  assess  the  damages  of  the  said  Thomas  Shewel,  by 
reason  of  the  not  performing  the  promises  and  undertakings  within  men- 
tioned, over  and  above  the  within  mentioned  sum  of  150  dollars,  and  over 
and  above  his  costs  and  charges  by  him  about  his  suit  in  this  behalf  ex- 
pended, to  100  dollars.     Arch.  Forms;,  145,  146. 

The  judgment  for  the  plaintiff,  on  such  a  verdict,  is  for  100  dollars, 
together  with  costs,  as  in  ordinary  cases.     lb. 


Pence  and  Another,  Administrators,  v.  Smock. 

Conditions  Dependent — Tender  Before  Suit. — The  consideration  of  t 
title-bond  was — the  obligee's  agreement  to  convey  certain  land  to  the 
obligor,  on  the  same  day  on  which  the  conveyance  mentioned  in  the  title- 
bond  was  to  be  executed,  and  to  pay  the  obligor  two  promissory  no  tea 
before  that  day,  one  in  money  and  the  other  in  personal  property.  Held, 
tliat  the  covenants  were  dependent  and  that  the  obligee's  not  conveying 
nor  offering  to  convey  the  land,  the  conveyance  of  which  was  the  main 
part  of  the  consideration  of  the  title-bond,  was  a  bar  to  his  recovery  on 
that  bond. 

[■■316]  "•■■Failure  of  Consideration — Lost  Bond — Practice. — Debt  or 
a  bond.  Plea,  a  failure  of  consideration,  in  consequence  of  the 
non-performance,  by  the  obligee,  of  the  condition  of  a  certain  bond  which 
was  lost.     Held,  that  the  loss  of  the  bond  did  not  preclude  the  defence. 

Accord  and  Satisfaction — Pleading. — If  a  plea  of  accord  and  satisfactior. 
by  the  delivery  to  the  j^laintiff  of  certain  property,  does  not  state  a  time 
when  the  delivery  was  made,  it  is  bad  on  special  demurrer. 

Fraud — Pleading. — A  general  plea  to  an  action  on  a  bond,  that  the  bond 
had  been  obtained  by  fraud  and  covin,  without  setting  out  the  particu- 
lars of  the  fraud,  is  good. 

ERROli  to  the  Marion  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  debt  by  Peter 
Smock  ao-ainstthe  administrators  of  John  Smock,  founded 
on  a  penal  bond  of  the  intestate  for  800  doHars,  condi- 

(871) 


-316-317  SUPREME  COUKT  OF  INDIANA. 

Pence  and  Another,  Administrators,  v.  Smock. 

tioned  for  his  conveyance  of  a  tract  of  land  to  the  plain- 
titi"  on  or  before  the  9th  of  Februarj^,  1827.     The  declar- 
ation avers  that  the  obligor,  having  no  title,  fraudulently 
represented  his  title  to  be  good  ;  and  that  he  acquired  no 
title  during  his  life-time,  nor  have  the  defendants  acquired 
any  since  his  death.     The  defendants  pleaded  three  pleas 
iu  bar.     The  first  plea  is,  that  the  bond  declared  on  was 
given  in  consideration   of  the  plaintiff's   agreement  by 
bond  to  convey  to  the  intestate,  on  the  9th  of  February, 
1827,  a  quarter  section  of  land,  situate  in  Jefferson  county, 
in  this  state,  being  the  land  on  which  the  plaintiff  resided 
at  the  time  of  the  contract;  and  in  consideration  of  the 
plaintiff's  note  for  150  dollars,  payable  in  personal  prop- 
erty on  or  before  the  10th   of  December,  1826;   and  in 
consideration  of  one  50  dollar  note  to  be  paid  at  the  same 
time.     Averment,  that  the  bond  to  the  intestate  is  lost; 
that  the  plaintiff  had  not  conveyed  the  land  to  him,  but 
to  another  person  named  George  Owens;  that  the  plain- 
tiff had  failed  and  refused  to  deliver  the  personal   prop- 
erty contracted  for,  or  any  part  thereof;  and  that  the  in- 
testate had  given  up  the  50  dollar  note  to  the  plaintiff  at 
liis  request  and  without  consideration.     The  second  plea 
is   an   accord  and   satisfaction,  by  the   delivering  to   the 
plaintiff  a  title-bond  and  two  promissory  notes,  previously 
given  b}^  the  plaintiff  to  the  intestate.     The  third  plea  is, 
that  the  bond  stated  in  the  declaration  was  obtained  from 
the  intestate  by  fraud  and  covin.     To  all  these  pleas  the 
plaintiff  specially  demurred.     The  objections  made  to  the 
first  plea  are,  1st,  the  land  is  not  sufficiently  described  ;  2d, 
the  contracts  w^ere  independent ;  3d,  no  demand  of  the  per- 
sonal property  is  shown;  4th,  a  lost  bond  can  not 
[*317]    be  set  up  as  a  defence.    To  the  second  plea.one  "^of 
the  objections  is,  that  no  time  is  stated  when  the 
bond  and  notes  were  given  up.     The  third  plea  is  objected 
to,  because  the  particulars  of  the  fraud   are  not  stated. 
These  demurrers  w^ere  all  sustained  by  the  Circuit  Court; 

(372) 


MAY  TERM,  1830„  317 


Pence  and  Another,  Administrators,  v.  Smock. 


(hiniages  were  assessed  upon  a  writ  of  inquiry;  and  final 
Judgment  was  rendered  for  the  plaintiff  below. 

It  is  objected  to  the  first  plea,  that  the  land  which  was 
to  be  conveyed  to  the  intestate  is  not  sufiiciently  described. 
It  is  set  out  as  a  quarter  section  of  land  in  Jefterson 
county,  in  this  state,  on  which  the  plaintiff  resided  at  the 
time  of  the  contract ;  and  which  he  has  since  sold  to  one 
George  Owens.  This  description  is  sufficiently  particular. 
The  next  objection  to  the  first  plea  is,  that  the  contracts 
are  independent.  This  objection  can  not  be  sustained. 
The  consideration  of  the  bond  sued  on  was  the  plaintifi^'s 
agreement  to  convey  certain  land  to  the  intestate,  on  the 
same  day  on  which  the  intestate's  conveyance  was  to  be 
made,  and  to  pay  two  promissory  notes  to  the  intestate 
some  time  before.  The  covenant  of  the  intestate,  there- 
fore, was  not  independent.  His  liability  depended  on  the 
plaintift''s  previously  conveying  or  offering  to  convey  the 
land  contracted  for,  and  on  his  being  ready  to  deliver  the 
personal  property  at  the  time  appointed,  and  on  his  pay- 
ment of  the  50  dollar  note.  Whether  a  failure  as  to  any 
small  part  of  this  consideration  would  be  a  good  defence, 
is  not  the  question.  Here  the  main  part,  to  wit,  the  con- 
veyance or  ofter  to  convey  the  land  on  which  the  plaintiff 
lived,  was  not  performed.  That  failure  is  a  bar  to  the 
action.  This  last  remark  is  a  sufficient  answer  to  the 
third  objection  to  this  plea;  because  it  shows  that  it  is 
immaterial  whether  the  failure  to  deliver  the  personal 
property  is  well  pleaded  or  not.  The  plea  w^ould  be  good, 
even  if  there  had  been  no  default  as  to  this  part  of  the 
consideration.  It  is  further  contended  against  the  first 
plea,  that  as  the  title-bond  to  the  intestate  is  lost  it  con- 
stitutes no  defence.  The  argument  goes  on  the  ground 
that  an  action  at  law  will  not  lie  on  a  lost  bond.  We  are 
of  opinion,  however,  that  an  action  at  law  may  be  brought 
on  such  a  bond ;  and  if  so,  it  may  furnish  a  good  defence 
in  a  case  like  the  present.      Reed  v.  Brookman,  3  T.   K. 

(373) 


317-318    SUPKEME  COURT  OF  INJ)IAXA. 

The  State  i'.  Pearce. 

151  (1),    For  these  reasons,  we  consider  that  the  first  plea 
filed  is  a  good  bar  to  the  action. 

The  objection  to  the  form  of  the  second  plea, 

[*318]    viz.,  that  the  *time  of  the  delivery  of  the  bond 

and  notes  is  not  stated,  is  a  good  one.     That  point 

is  decided  in  Cmiyiingham  v.  Flinn,  Kov.  term,  1823  (2). 

The  demurrer  to  this  plea  was  correctly  sustained. 

The  third  plea  is  per  fraudem  generally.  The  objection 
is,  that  the  particulars  of  the  fraud  are  not  set  out.  This 
general  mode  of  pleading  fraud  we  conceive  to  be  correct. 
It  is  supported  by  good  authority.  Wimbish  v.  TailboiSy 
Plowd.  Com.  38,  54 ;  Tresham's  case,  9  Co.  Rep.  108 ;  Knight 
V.  Peachy,  T.  Raym.  303;  1  Chitt.  PI. -553;  2  Chitt.  PL 
464,  603;  3  Chitt.  PI.  563;  31ason  v.  Evans,  Coxe's  Rep. 
182;   Gordon  v.  Gordon,  1  Stark.  Rep.  396  (3). 

It  is  therefore  the  opinion  of  the  Court  that  the  demur- 
rers to  the  first  and  third  pleas  should  have  been  over- 
ruled. 

Per  Curiam. — The  judgment  is  reversed,  &c.,  with  costs 
Cause  remanded,  &c. 

Brown,  for  the  plaintiff's. 

Sweetser,  for  the  defendant. 

(1)  In  the  case  of  Read  v.  Brookman,  it  was  held  that  a  deed  may  be 
pleaded  as  "lost  by  time  and  accident,"  ■without  making  profert  of  it ;  but 
in  the  case  of  Hendy  v.  Stephenson,  10  East,  55,  a  justitication  in  trespass 
was  pleaded,  which,  after  stating  that  the  defendant  was  possessed  of  aright 
of  common  under  a  grant,  proceeded  as  follows :  "which  deed  is  since  lost 
or  destroyed  by  accident  and  length  of  time,  and  therefore  can  not  be 
brought  into  Court  here,  and  the  date  thereof  is,  and  the  particular  parties 
thereto  are,  for  that  reason,  wholly  unknown  to  the  said  defendant :"  the 
Court  held  this  bad,  as  being  much  too  loose  in  the  description  of  the  deed. 
Note  to  Bi(/g  v.  Roberts,  3  Carr.  &  Payne,  43. 

(2)  Vol.  1  of  these  Rep.  266. 

(3)  Vide  Huston  el  ul  v.  Williams,  May  term,  1833. 


The  State  r.  Pearce. 


Adultery — Definition. — If  a  man  have  criminal  intercourse  with  a  mar- 
ried woman,  the  ofience  is  adultery  and  not  fornication. 

(374) 


MAY  TERM,  1830.  318-319 

The  State  v.  Pearce. 

ERROR  to  the  Johnson  Circuit  Court. 

Blackford,  J. — Indictment  against  the  defendant  for 
living  in  open  and  notorious  fornication  with  Elizabeth 
Shafier.  Plea,  not  guilty.  On  the  trial,  the  de- 
[*319]  fendant  proved  that  he  was  ^married  to  the  woman 
named  in  the  indictment.  Witnesses  were  then 
offered,  on  the  part  of  the  state,  to  show  that  this  woman 
had  a  husband  living  at  the  time  the  defendant  married 
her,  and  that  this  fact  was  known  to  the  defendant  at  the 
time  of  his  marriage.  This  testimony  was  objected  to,  and 
the  objection  sustained.  Verdict  and  judgment  for  the 
defendant.  There  is  no  error  in  these  proceedings.  The 
evidence  rejected  might  have  proved  the  defendant  guilty 
of  adultery,  but  it  could  not  have  proved  him  guilty  of 
fornication.  Jacob's  Law  Die.  Tit.  Adultery.  The  ques- 
tion whether  the  defendant  could  be  again  tried,  had 
the  testimony  been  improperly  rejected,  need  not  be 
examined. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Wick,  for  the  state. 

Letcher  and  Brown,  for  the  defendant. 

(1)  If  a  man  be  indicted  as  an  accessory  tp  a  felony,  and  he  be  proved 
guilty  as  a  principal,  he  must  be  acquitted,  because  the  minor  offence  is 
merged  in  the  greater.  R.  v.  Gordon,  1  Leach,  515  ;  Arch.  C.  L.  449.  So,  if 
a  man  be  indicted  for  a  misdemeanor  in  burning  his  own  house  which  was 
adjoining  other  houses,  and  it  be  proved  that,  in  consequence  of  the  burning 
of  the  defendant's  house,  the  adjoining  houses  were  burnt,  the  defendant 
must  be  acquitted ;  the  misdemeanor  being  merged  in  the  felony.  Isaac's 
case,  2  Euss.  on  C.  1659. 


END  OF  MAY  TERM,  1830. 


(375) 


[*320]  *  CASES 

AEGUED  AND  DETERMINED 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 


STATE  OF  INDIANA, 


AT    INDIANAPOLIS,    NOVEMBER    TERM,    1830,  IN  THE    FIFTEENTH   YEAB   OF 

THE  STATE. 


Kimble,  Assignee,  v.  Adair. 

Practice — Open  and  Close. — The  party  on  whom  the  affirmative  of  the 
issue  lies,  has  a  right  to  open  and  conclude  the  cause  (a). 

ERROR  to  the  Franklin  Circuit  Court. — A  suit  was 
brought  in  a  justice's  Court  on  a  sealed  note,  by  Kimble, 
assignee,  against  Adair,  the  maker.  The  note  reads  as 
follows:  "On  or  before  the  first  of  March  next,  for  value 
rec'd,  I  promise  to  pay  John  Spangler,  or  order,  25  dol- 
lars; provided  the  said  Spangler  has  not  made  any  com- 
promise, or  received  any  pay  for  timber  cut  on  the  land 
which  he  purchased  of  W.  H.  Eads  and  has  this  day 
given  up.  Witness  my  hand  and  seal  this  27th  of  Oct, 
1827. — Joh7i  Adair,  (seal)."  Judgment  in  favor  of  Kimble. 
Appeal  to  the  Circuit  Court  by  Adair;  in  which"  Court, 
conformably  to  the  statute,  Kimble  was  the  phiiiititf  and 
Adair  the  defendant.  On  the  trial  in  the  Circuit  Court, 
the  defendant  having  admitted  the  execution  of  the  note, 

(a)  11  Ind.  218;  37  /c?.  284. 

(376) 


NOVEMBER  TERM,  1830.  320-321 

Kimble,  Assignee,  v.  Adair. 

was  permitted  to  open  and  conclude  the  cause.  Verdict 
and  judgment  for  the  defendant. 

HoLMAN,  J. — The  right  of  opening  and  concluding  a 
case  belongs  to  him  who  holds  the  afhrmative ; 
[*321]  and  from  all  that  we  *can  learn  of  the  nature  of 
the  defence  in  this  case  the  affirmative  was  with 
the  defendant.  There  being  no  plea  or  written  defence, 
and  the  execution  of  the  note  being  admitted,  there  was 
nothing  required  on  the  part  of  the  plaintiff  to  secure  his 
case;  and  unless  something  was  shown  by  the  defendant, 
under  the  proviso  in  the  note,  to  defeat  his  claim,  he 
would  obtain  a  verdict  and  judgment  as  a  matter  of 
course.  It  seems  to  us  that  it  lay  upon  the  defendant  to 
show  that  the  plaintiff  had  entered  into  a  compromise,  or 
had  received  a  compensation  for  cutting  timber,  as  men- 
tioned in  the  proviso,  and  this  was  affirmative  matter. 
"We  are  not  able  to  comprehend  how  the  plaintiff's  claim, 
under  the  circumstances  of  the  case,  could  have  been  re- 
sisted but  by  affirmative  matter;  and  such  matter  as,  if 
formed  into  a  regular  plea,  would  have  given  the  defend- 
ant the  right  of  opening  and  concluding  the  case.  We, 
therefore,  see  nothing  on  this  point  to  authorize  a  reversal 
of  the  judgment  (1). 

Per  Curiam. — The  judgment  is  affirmed,  with  costs. 

M' Kinney  and  Morris,  for  the  plaintiff. 

Stevens^  for  the  defendant. 

(1)  Trespass  qu.cl.fr.  Plea,  as  to  coming  with  force  and  arms  and 
whatever  else  was  against  the  peace,  not  guilty  ;  as  to  the  residue,  a  right  of 
way,  which  was  denied  by  the  replication.  Held,  that  the  defendant  should 
begin,  as  not  guilty  as  to  the  force  and  arms  was  not  a  general  issue,  and 
did  not  throw  any  necessity  of  proof  on  the  itlaintiff.  Hodges  v.  Holder,  3 
Camp.  R.  366. 

A  similar  decision  to  the  above  was  made  in  a  subsequent  ca.se,  in  which 
Bayley,  J.  says,  that  the  denial  of  what  is  against  the  peace  is  merelv  to 
save  a  fine  to  the  king;  that  the  party  who  has  to  prove  the  affirmative  of 
the  issue  ought  to  begin  ;  that  where  there  are  several  issue,  and  the  proof 
of  one  of  them  lies  on  the  plaintiff,  he  is  entitled  to  begin,  that  the  cpiestion 
of  damages  never  arises  till  the  issue  has  been  tried.  Jackson  v.  Hesketh,  2 
Stark.  R.  518. 

Trespass  for  an  assault  and  battery.  Plea,  (without  the  general  issue,) 
tliat  the  plaintiff  was  a  mariner  on  board  a  ship,  of  which  the  defendant 
was  commander,  and  that  the  plaintiff  was  engaged  in  a  mutiny,  to    sup- 

(377) 


321-322   SUPREME  COURT  OF  INDIANA. 


Vanblaricum  and  Another  v.  Yeo,  Administrator. 


press  which  the  defendant  committed  the  trespass.     Replication,  de  injurki. 
The  defendant  was  directed  to  begin.     Bedell  v.  Russell,  Ry.  &  Mood.  293. 

Assumpsit.  Plea  in  abatement,  that  the  promises  were  made  jointly 
with  A.  Replication,  that  they  were  not  made  jointly  with  A.  On  the 
trial  of  this  issue,  the  defendant  begins.  Fowler  v.  Coster,  3  Carr.  &  Pavne, 
463. 

In  an  action  for  a  libel,  there  were  pleas  of  justification,  but  the  general 
issue  was  not  pleaded,  and  the  affirmative  of  the  issue  was  on  the  defend- 
ant. Held,  that  the  phiintifl'had  not  a  right  to  begin,  with  a  view  to  prove 
the  amount  of  his  damages;  but  that  the  right  to  begin  was  with  the  defen- 
dant.    Cooper  V.  Wakley,  3  Carr.  &  Payne,  474. 

Trespass  for  taking  goods.     The  defendant  pleaded  (without  the 
[*322]    general  issue)  a  '^justification  under  a  commission  of  bankruptcy. 
Replication,  denying  the  bankruptcy.     The  defendant  was  permit- 
ted to  begin.     Cotton  v.  James,  3  Carr.  &  Payne,  505. 


Yanblaricum  and  Another  v.  Yeo,  Administrator. 

Administrator  De  Bonis  Non — Complaint  By. — In  an  action  by  an  ad- 
ministrator de  bonis  7ion,  the  declaration  should  state  the  name  of  the  first 
administrator,  and  contain  an  averment  of  non-pavment  to  him. 

Seal — What. — An  ink  seal  commonly  called  a  scroll  has  liie_same  effect, 
by  statute,  as  if  it  were  made  with  wafer  or  wax. 

ERROR  to  the  Marion  Circuit  Court. 

Blackford,  J. — This  was  an  action  of  debt.  The  dec- 
laration commencs  as  follows:  Joshua  Yeo,  adminis- 
trator ffe  bonis  non  of  all  and  singular  the  goods  and  chat- 
tels which  were  of  Jesse  M'Kay,  deceased,  complains  of 
David  S.  Vanblaricum  and  John  Vanblaricum,  &c.  In 
the  first  count  the  cause  of  action  is  stated  to  be  a  cer- 
tain instrument  of  writing  subscribed  by  the  defendants, 
in  the  following  words:  "On  or  before  the  1st  of  Feb. 
1826,  we  or  either  of  us  promise  to  pay  Jesse  M'Kay 
or  order  220  dollars,  for  value  received  this  29th  of 
Jan.  1825. — D.  S.  Vanblaricum,  (seal).  Jolm  Vanblaricum, 
(seal)."  It  is  not  averred  that  the  defendants  sealed  this 
instrument,  nor  is  it  called  a  writing  obligatory.  The 
second  count  is  upon  a  certain  other  writing,  for  the  pay- 
mei.t  of  the  same  amount  of  money,  the  substance  of 
which  writing  is  described.     The  declaration  assigns  as 

(378) 


NOVEMBER  TERM,  1830.  322-323 

Vanblaricum  and  Another  v.  Yeo,  Administrator. 

a  breach  of  these  contracts  that  the  money  had  not  been 
paid  either  to  M'Kay,  to  the  phiintift",  or  to  any  other 
person;  and  concludes  with  a  profert  of  the  letters  of 
administration  de  bonis  non,  granted  to  the  plaintifi".  The 
defendants  demurred  specially  to  this  declaration,  and 
assigned  the  following  causes  of  dem.urrer:  1st,  the  dec- 
laration does  not  state  the  name  of  the  first  adminis- 
trator, nor  does  it  aver  a  non-payment  of  the  money  to 
him;  2dly,  the  instrument  described  in  the  first  count  is 
not  declared  on  as  a  writing  obligatory  or  deed,  though 
it  is  shown  to  be  sealed;  3dly,  the  writing  described  in 
the  second  count  is  not  alleged  to  be  a  writing  obligatory, 
nor  to  be  an  instrument  in  writing  not  under  seal.  The 
plaintift'  below  joined  in  demurrer.  The  Circuit  Court 
considered  the  declaration  good,  and  the  plaintifl'  ob- 
tained a  judgment. 

The  first  objection,  which  goes  to  the  whole 
[*323]  declaration,  is,  *that  the  name  of  the  original  ad- 
ministrator is  not  given,  nor  is  it  stated  that  the 
money  had  not  been  paid  to  him.  This  objection  is  fatal. 
The  defendants  had  a  right  to  plead  payment  to  the  ori- 
ginal administrator,  without  averring  specially  that  he 
was  such  administrator.  To  enable  him  to  do  this,  the 
declaration  must  state  who  that  administrator  was.  The 
plaintiff  below,  who  is  the  defendant  in  error,  relies  upon 
the  case  of  Catherwood  v.  Chahaud,  1  Barn.  &  Cress.  150. 
In  that  action,  however,  which  was  by  an  administrator 
de  bonis  non,  the  declaration  showed  who  was  the  original 
administrator.  The  defendant  there  pleaded  the  general 
issue;  and  the  question  on  the  trial  was,  whether  the 
plaintiff,  in  proving  his  title,  was  bound  to  produce  not 
only  the  letters  of  administration  to  himself,  but  also  those 
to  the  first  administrator.  The  Court  held  that  the  first 
letters  need  not  be  produced — not,  however,  because  proof 
of  that  administration  was  unnecessary,  but  because  the 
letters  de  bonis  non  were  sufficient  evidence  of  both  admin- 
istrations.    That  case,  therefore,  is  not  an  authority  for 

(379) 


323-324    SUPREME  COURT  OF  INDIANA. 

Vanblaricum  and  Another  v.  Yeo,  Administrator. 

the  omitting  to  aver,  in  the  declaration,  the  existence  ot" 
the  original  administration.  It  is  rather  an  authority 
against  such  an  omission.  We  have  examined  several 
precedents  of  declarations,  by  administrators  de  bonis  7ion, 
in  Wentworth  and  Chitty.  They  all  commence  as  fol- 
lows :  "A.  B.,  administrator  of  all  and  singular  the  goods 
and  chattels,  rights  and  credits,  which  were  of  C.  D.,  de- 
ceased, who  died  intestate,  which  were  not  administered 
by  E.  F.,  also  deceased,  who  was  administrator  of  all  and 
singular  the  goods  and  chattels,  rights  and  credits  of  the 
said  C.  D.,  complains,  &c."  From  this  view  of  the  pres- 
ent case  we  are  satisfied  that  this  declaration  is  defective 
for  not  giving  the  name  of  the  first  administrator,  and  for 
not  averring  a  non-payment  to  him. 

This  opinion  makes  it  unnecessary  to  examine,  particu- 
larly, the  subsequent  objections.  It  may  be  remarked, 
however,  in  passing,  that  we  consider  the  instrument  of 
writing  described  in  the  first  count  to  be  a  writing  obli- 
gatory. The  ink  seals  used  have  the  same  effect  as  if 
they  were  of  wafer  or  wax.  The  putting  on  the  seal, 
whether  with  ink  or  with  wax,  is  an  agreement  that  the 
writing  is  to  be  considered  a  deed.  Stat.  1824,  p.  20<5  (1). 
The  first  objection  goes  to  the  wliole  declaration,  and  the 
demurrer  to  it  should  have  been  sustained. 

Per  Curiam. — The  judgment    is    reversed,  &c. 
[*324]    Cause  *remanded,  with  directions  to  permit  the 
plaintifiT  below  to  withdraw  his  joinder  in  demur- 
rer, and  amend  his  declaration. 

Brown,  for  the  plaintiffs. 

Fletcher  and  Merrill,  for  the  defendant. 

(1)  Accord.  R.  C.  1831,  p.  407.— Brad liehl  v.  JfCormick,  Nov.  term,  1832. 
In  the  eastern  states,  sealing  with  wafer  or  wax  or  some  other  tenacious 
substance,  as  at  common  law,  is  requisite.  In  the  southern  and  western 
states  generally,  a  scroll  is  a  seal.  Evidence  is  required,  in  Virginia,  of 
the  intention  of  the  parties  to  substitute  the  scroll  for  a  seal.  In  New 
York,  a  seal  can  only  be  made  as  at  common  law.  4  Kent's  Cdinm.  2d  Ed. 
4";2.  The  following  is  the  languas-e  of  the  Court  in  Maryland  :  "  From 
the  earliest  period  of  uur  judicial  liistory,  a  scrawl  has  been  considered  as 
a  seal,  and  it  would  be  too  late  at  this  day,  and  wotild  be  attended  with 

(380) 


NOVEMBER  TERM,  1830  324-325 


Green  and  Others  v.  Vardiman  and  Others. 


consequences  too  serious,  to  permit  it  to  be  questioned.  It  is  not  necessary, 
as  lias  been  ai-gued,  that  the  scrawl  must  be  adopted  by  the  obligor,  by  a 
declaration  in  the  body  of  the  bond,  or  single  bill,  to  make  it  his  seal.  It 
is  sufficient  if  the  scrawl  be  affixed  to  the  bond,  or  bill,  at  the  time  of  its 
execution  and  delivery.  For,  if  he  execute  and  deliver  it  with  the  scrawl 
attached,  it  being  considered  here  as  equivalent  to  the  wax  or  wafer,  it  is 
as  much  his  seal  as  if  he  had  declared  it  to  be  so  in  the  body  of  the  instru- 
ment. The  fact  of  the  clau.se  of  attestation  not  appearing  in  the  usual  form 
of  ",sif/?ifc/,  sealed,  and  delivered,"  axn,  in  reason,  make  no  difference;  for  the 
question  always  is,  is  this  the  seal  of  the  obligor?  and  if  he  has  delivered 
it  with  the  .scrawl  attached,  it  is  his  seal,  and  must  be  so  considered ;  for 
whether  an  instrument  be  a  specialty,  must  always  be  determined  by  the 
fact  whether  the  party  affixed  a  seal ;  not  upon  the  assertion  of  the  obligor, 
in  the  body  of  the  instrument,  or  by  the  form  of  the  attestation."  Trasher  v. 
Eierhari,  3  Gill  c^  Johns.  246. 


Green  and  Others  v.  Vardiman  and  Others. 

Chancery  Practice  and  Pleading — Answer. — It  is  a  general  rule  that 
an  answer  in  chancery  is  to  be  taken  as  true,  unless  it  be  disproved  by 
two  witnesses,  or  by  one  witness  and  corroborating  circumstances  (a). 

Same. — This  rule,  however,  does  not  extend  to  every  thing  which  the 
answer  contains  in  favor  of  the  defendant :  it  applies  only  to  that  part  of 
the  answer  which  is  directly  responsive  to  the  charges  in  the  bill. 

Answer  in  Avoidance — Practice. — Matters  which  are  set  up  in  avoidance 
and  which  are  not  responsive  to  the  bill,  must,  when  in  issue,  be  proved 
by  the  defendant  (h). 

Same — Practice. — If  the  answer  admit  a  fact,  but  rely  on  a  distinct  fact  in 
avoidance,  the  defendant  must  prove  the  fact  on  which  he  relies. 

Statute  of  Frauds — Partnership. — A.  and  B.  purchased  jointly  a  land- 
office  certificate  for  a  tract  of  land,  on  which  there  were  some  improve- 
ments, and  the  assignment  of  the  certificate  was  made  to  A.,  who  had 
paid  more  of  the  purchase-money  than  B.  The  purchasers,  by  a  parol 
agreement,  divided  the  land.  By  this  agreement,  A.  received  several 
acres  more  than  B.,  together  with  the  improved  part  of  the  premises,  and 
was  to  pay  B.  a  certain  sum  as  the  difference  in  value  of  the  two  parts, 
and  to  assist  B.  in  improving  his  part.  Each  of  the  parties  took  posses- 
sion of  his  own  part  of  the  premises.  Held,  that  the  agreement  was  not 
affected,  in  equity,  by  the  statute  of  frauds. 

[=^325]        *ERROR  to  the  Fayette  Circuit  Court. 

IToLMAN,  J. — The  chihlren  and  heirs  of  Nancy  Green, 
deceased,  by  Daniel  Green  their  father  and  guar- 
dian, filed  their  bill  in  chancery;  stating  that  John  Var- 

(a)   S  Ind.  411,     {h)  9  Ind.  132, 

(381) 


3«>5     SUPREME  COURT  OF  INDIANA. 

Green  and  Others  r.  Vardinian  and  Others. 

diman,  their  grandfather,  died  in  Kentucky,  leaving  a 
large  estate  real  and  personal,  and  leaving  Mary  Vardi- 
man,  his  widow,  and  John  T.  Vardinian,  Peter  Vardiman, 
William  Vardiman,  Morgan  Vardiman,  George  W.  Var- 
diman, and  the  said  Nancy  Green,  wife  of  the  said  Daniel 
Green,  and  Elizabeth  Wilson,  wife  of  Benjamin  Wilson, 
his  heirs;  that  Mary  Vardiman  and  Morgan  Vardiman 
administered  on  his  estate  and  received  the  whole,  inclu- 
ding two  negroes,  into  their  possession;  that  afterwards, 
John  T.  and  William  jointly  purchased  the  certificate  for 
100  acres  of  land,  in  paying  for  which  John  T.  paid  200 
dollars  for  William,  and  took  the  certificate  in  his  own 
name;  that  John  T.  died,  leaving  a  large  estate  beside 
said  land  and  said  debt  from  William,  before  he  had  re- 
ceived his  distributive  share  of  his  father's  estate,  leaving 
the  remaining  heirs  of  John  Vardiman,  deceased,  his  law- 
ful heirs ;  that  William  and  Morgan  administered  on  his 
estate ;  that,  before  the  distribution  of  either  of  said 
estates  Peter  Vardiman  died,  leaving  the  remaining  heirs 
of  John  Vardiman,  deceased,  his  lawful  heirs;  that  George 
W.  Vardiman  administered  on  his  estate ;  that  Nancy 
Green  died,  leaving  the  complainants  her  lawful  heirs. 
All  the  other  heirs,  &c.,  are  made  defendants.  The  bill 
makes  general  and  special  charges  of  waste  of  the  several 
estates,  and  of  a  failure  to  pay  the  complainants  their  dis- 
tributive share.  One  of  the  special  charges  is,  that,  after 
the  death  of  John  T.,  William,  instead  of  accounting  for 
the  200  dollars  that  John  T.  had  advanced  for  him,  set  up  a 
pretended  agreement  made  between  him  and  the  said 
John  T.  in  his  life-time,  that  John  T.  should  pay  William 
75  dollars  for  five  acres  of  land,  and  also  assist  him  to  clear 
five  acres  and  build  a  cabin  on  it;  which  contract,  if  any 
teok  place,  the  bill  charges  to  be  void,  the  same  not  being 
in  writing.  The  bill  requires  special  answers  as  to  the 
amount  of  each  estate,  and  as  to  all  the  particulars  of  the 
administration  item  by  item:  not  only  as  to  all  to  what 
had  been  received,  but  also  to  what  had  been  paid  out; 

(382) 


NOVEMBER  TERM,  1830.  325-326 

Green  and  Others  r.  Vardiman  and  Others. 

including  a  full  disclosure  of  all  the  circumstances  of  the 
supposed  agreement  between  John  T.  and  William. 

Mary  Vardiman  and  Morgan  Vardiman  plead- 
[*326]  ed,  that  they  *had  fully  administered  the  estate 
of  John  Vardiman,  deceased,  except  two  negroes  ; 
that  they,  with  the  said  Daniel  Green,  in  the  life-time  of 
^N'ancy  Green,  entered  into  a  written  agreement  to  submit 
all  matters,  relative  to  Nancy  Green's  share  of  said  estate, 
to  arbitration  ;  that  an  award  was  made  agreeably  to  said 
submission,  requiring  certain  payments  to  be  made  to  said 
Green,  which  they  had  made  and  received  said  Green's 
acquittance  ;  referring  to  the  arbitration-bond,  the  award 
and  the  acquittance  as  a  part  of  their  plea  ;  that  as  to  the 
two  negroes,  all  the  heirs  of  the  said  John  Vardiman,  de- 
ceased, after  they  came  to  full  age,  including  the  said 
Daniel  and  Nancy  Green,  executed  a  power  of  attorney  to 
Morgan  Vardiman,  authorizing  him  to  sell  said  negroes 
for  the  benefit  of  said  heirs,  which  power  of  attorney  is 
also  made  part  of  the  plea;  and  that,  by  virtue  of  said 
power,  said  Morgan  did  sell  said  negroes.  These  defend- 
ants are  ruled  to  show  cause,  why  they  should  not  answer 
the  bill  as  to  all  the  particulars  of  their  administration. 
They  show  for  cause,  that  they  fully  administered  said 
estate  in  the  state  of  Kentucky,  and  settled  and  closed  all 
their  administration  accounts  in  a  county  Court  in  Ken- 
tucky, agreeablj^  to  the  laws  of  that  state.  This  cause 
was  adjudged  insufiicient,  and  they  are  ruled  to  answer 
the  bill.  In  their  answer  they  set  forth  all  the  particulars 
of  their  administration,  stating  that  they  had  fnll^^paidto 
the  said  Daniel  Green,  in  the  life-time  of  Nancy  Green, 
her  full  share  of  said  estate. 

Morgan  and  William  Vardiman  answered  according  to 
the  requisitions  of  the  bill;  exhibiting,  as  they  say,  a  full 
and  minute  account  of  the  administration  of  the  estate  of 
John  T.  Vardiman,  deceased,  showing  the  amout  that 
was  left  for  distribution  ;  of  which,  they  allege  they  paid 
Daniel  Green,  in  the  life-time  of  Nancy  Green,  her  full 

(388) 


326-327     SUPREME  COURT  OF  INDIANA. 

Green  and  Others  i\  Vardiman  and  Others. 

share.  In  answering  that  part  of  the  bill  that  requires  a 
disclosure  of  the  transactions  between  John  T.  and  Wil- 
liam, they  say  that  John  T.  paid  more  than  his  proportion 
of  the  money  for  the  purchase  of  the  land,  and  took  the 
assignment  of  the  certificate  in  his  own  name;  that  Wil- 
liam afterwards  made  him  some  payments;  that  when 
they  divided  the  land,  John  T.  received  about  five  acres 
more  than  his  proportion,  and  also  received  that  part  on 
which  was  a  spring  and  an  improvement;  that  he  agreed 
to  allow  William  75  dollars  for  the  dififerencein  the 
[*327]  value  of  the  two  tracts,  and  also  to  perform  *an 
equal  part  of  the  labor  in  clearing  five  acres  on 
the  tract  allotted  to  William,  and  of  erecting  buildings 
thereon  equal  to  those  on  his  tract ;  that  each  took  im- 
mediate possession  of  his  part,  and  continued  to  exercise 
a  quiet  and  undisturbed  ownership  over  it;  that  John  T. 
did  not  perform  said  labor,  and  that  in  their  administra- 
tion, they  selected  men,  who  are  named  in  the  answer,  to 
estimate  the  value  of  the  labor  that  John  T.  had  agreed 
to  perform ;  that  said  men  estimated  the  value  of  the 
labor  at  a  sum  which  they,  in  their  answer,  aver  it  was 
reasonably  worth  ;  that  a  patent  for  said  land  was  not  ob- 
tained during  the  life  of  John  T.,  but  was  issued  in  his 
name  after  his  death. 

George  W.  Vardiman  answered  as  to  his  administration 
of  the  estate  of  Peter  Vardiman,  deceased  ;  from  which 
it  appears  that,  of  the  personal  estate,  nothing  was  left 
for  distribution  ;  that  Peter  left  a  tract  of  land,  of  which 
Daniel  Green,  as  guardian  of  the  complainants,  has  re- 
ceived their  proportion. 

The  complainants  filed  a  general  replication. 

There  is  no  answer  by  Benjaniin  and  Elizabeth  Wilson, 
nor  does  it  appear  that  any  measures  were  taken  to  obtain 
their  answer.  They  seem  to  have  been  forgotten.  We 
mention  this  circumstance,  by  the  wa}',  not  on  account  of 
the  bearing  it  will  have  in  this  case,  but  on  account  of 
the  inconvenience  such  proceedings  sometimes  occasion, 

(384) 


NOVEMBER  TERM,  1830.  327-328 

Green  and  Others  v.  Vardiman  and  Others. 

by  the  final  disposition  of  a  case  before  all  the  parties  are 
before  the  Court.  No  depositions  were  taken.  The  case 
was  finally  heard  on  the  plea,  answers,  replication  and 
exhibits;  and  the  Circuit  Court  dismissed  the  bill  with- 
out prejudice. 

By  agreement  of  the  counsel  on  each  side,  the  exhibits 
are  not  copied  in  the  record,  but  it  is  admitted  of  record 
in  this  Court  that  they  are  to  be  taken  to  be  just  as  they 
are  alleged  to  be  in  the  pleadings. 

The  first  object  in  this  case  that  presents  itself  for  our 
attention  is  the  plea  of  Mary  and  Morgan  Vardiman. 
This  plea  presents  a  complete  bar  to  the  complainants  for 
any  claim  on  the  estate  of  John  Vardiman,  deceased.  The 
submission  to  arbitration,  the  award,  the  compliance  with 
that  award,  and  the  acquittance,  all  which  we  understand 
were  proved  by  the  exhibits  referred  to,  settle  all  matters 
in  controversy,  except  as  to  the  negroes.  The  an- 
[*328]  swer,  that  they  were  afterwards  ruled  to  ^rnake 
of  the  particulars  of  their  administration,  presents 
no  new  case ;  but  only  shows  the  matters  that  Avere,  or 
might  have  been,  in  controversy  before  the  arbitrators, 
and  which  were  settled  by  the  award.  The  case  of  the 
negroes  rests  upon  difl:erent  premises.  Slaves  in  Ken- 
tucky, if  we  are  correctly  informed,  are  not  strictly  per- 
sonal estate ;  and  are  not  subject  to  be  sold  by  adminis- 
trators, unless  for  the  payment  of  debts  in  the  absence  of 
personal  funds.  So  that  the  administrators  would  not  be 
liable  for  them  any  more  than  for  lands,  unless  there  was 
a  special  charge  that  they  had  disposed  of  them,  or  had 
refused  to  deliver  them  up  to  the  heirs  when  demanded. 
So  that  the  general  inference  to  be  drawn  from  this  plea, 
that  they  had  not  administered  these  slaves,  would  exon- 
erate them  from  the  claim  of  the  complainants.  The  ex- 
ecution of  a  power  of  attorney  by  the  heirs,  which  it 
seems  was  proved  by  its  exhibition,  authorizing  Morgan 
Vardiman  to  sell  these  slaves,  so  far  as  it  goes,  shows  that 
the  heirs  considered  the  slaves  as  under  their  control,  and 
Vol.  II.— 25  (385) 


328-329     SUPREME  COURT  OF  INDIANA. 


Green  and  Others  v.  Vardiman  and  Others. 


subject  to  their  order;  and  as  this  is  rebutted  by  no  cir- 
cumstance iu  the  case,  it  must  be  considered  as  the  fact. 
So  that  the  further  allegation,  that  Morgan  took  posses- 
sion of  the  slaves  and  sold  them  for  the  beneiit  of  the 
heirs  by  virtue  of  the  power,  requires  no  proof  in  order 
to  discharge  the  administrators.  The  liability  of  Morgan, 
as  a  special  trustee,  for  the  price  of  these  slaves  is  not 
within  this  case;  as  the  bill  only  charges  him  as  an  ad- 
ministrator, and  as  such  he  is  not  liable.  But  if  it  should 
be  considered  that  the  bill  was  intended  to  charge  him  as 
a  special  trustee,  the  charge  is  evidently  deficient;  as  it  is 
not  stated  that  he  has  received  the  price  for  which  the 
slaves  were  sold,  and  failed  to  pay  it  over ;  or  has  in  any 
other  way  violated  said  trust. 

The  principal  question,  however,  presented  for  consid- 
eration iu  this  case,  is  how  far  the  answer  of  a  defendant, 
to  which  there  is  a  replication,  is  to  be  taken  as  evidence 
of  the  facts  stated  in  it?  It  is  a  general  rule  that  an  an- 
swer is  to  be  taken  as  true  unless  disproved  by  two  wit- 
nesses, or  by  one  witness  and  corroborating  circumstan- 
ces; and  when  the  term  answer  is  taken  in  its  strictest 
sense,  we  believe  there  are  no  exceptions  to  this  rule; 
but  an  answer  in  this  sense  is  not  what  a  defendant  may 
say  in  his  own  behalf,  but  what  he  says  directly  respon- 
sive to  the  charges  in  the  bill.  Matters,  how- 
[*329]  ever,  that  are  set '-^ up  in  avoidance,  that  are  not 
responsive  to  the  bill,  when  in  issue,  must  be 
proved  by  the  defendant;  for  if  the  answer  admits  a  fact, 
but  insists  on  a  distinct  fact  in  avoidance,  the  defendant 
must  prove  this  fact.  Hart  v.  Ten  Eyck,  2  Johns.  C.  R. 
62.  On  this  part  of  the  subject  there  are  many  nice  dis- 
tinctions and  cases  that  it  is  difiicult  to  reconcile.  An 
executor,  in  his  answer  to  a  bill  by  the  creditors  for  an 
account  of  the  personal  estate,  stated  that  he  had  re- 
ceived 1,100^.;  that  in  making  up  his  accounts  he  gave 
his  bond  for  1,000L;  and  that  the  testator  gave  him  the 
other  100^.  for  his  trouble  and  pains  in  his  business:  it 

(386) 


NOVEMBER  TERM,  18b0.  329-330 

Green  and  Others  v.  Vardiman  and  Others. 

was  held  that  this  answer  did  not  discharge  the  defend 
ant  of  the  100^. ;  the  gift  b}^  the  testator  being  a  fact  distinct 
from  what  he  was  reqnired  to  answer,  and  so  in  avoid- 
ance of  the  demand  against  him.  Gilb.  Ev.  57.  S.  C. 
cited  also  in  Bnll.  IST.  P.  237,  and  in  1  Stark.  Ev.  292. 
Bnt  it  was  held  that  if  it  had  been  one  fact,  as  that  the 
testator  gave  him  100/.,  it  ought  to  have  been  allowed, 
lb.  So,  in  Ridgway  v.  Darwin^  6  Yes.  404,  an  executor 
charged  by  his  answer,  is  not  permitted  to  discharge  him- 
self by  affidavits  of  payments  made  to  the  testator  in  his 
life-time.  So  a  party  charging  himself  in  schedule  to  his 
answer,  can  not  discharge  himself  in  another  schedule 
showing  his  disbursements.  Boardman  v.  Jackson,  2 
Ball  &  Beat.  385.  And  a  party  charged  by  his  answei 
can  not  discharge  himself  by  it  unless  the  whole  is  stated 
as  one  transaction;  as  that  on  a  particular  day  he  re. 
ceived  a  sum  and  paid  it  over;  not  that  on  a  particulai 
day  he  received  a  sum  and  on  a  subsequent  day  he  paid 
it  over.  Thompson  v.  Lanibe,  7  Ves.  587.  Also  to  a  bill 
by  the  assignee  of  a  note,  stating  that  he  gave  a  valuable 
consideration  for  the  note  and  requiring  an  answer  to  the 
whole  bill — the  answer,  stating  that  the  note  was  assigned 
for  a  usurious  consideration,  requires  proof.  Green  v, 
Hart,  1  Johns.  R.  580.  There  are  many  similar  cases. 
which  seem  to  render  it  doubtful  what  matters  in  an 
answer  require  proof,  and  what  are  supported  by  the  an- 
swer itself;  and  those  cases  that  turn  on  the  unity  of  the 
transaction  Avhich  creates  a  charge  and  discharge,  are 
peculiarly  perplexing.  But  we  can  not  conceive  that  any 
of  those  cases  are  intended  as  exceptions  to  the  general 
rule— that  the  answer,  so  far  as  it  is  strictly  such,  being 
directly  responsive  to  the  bill,  is  to  be  taken   as  true. 

For,  when  the  bill  requires  a  disclosure  of  such 
[*330]    matters  as  may  '-^^discharge  the  defendant,  he  is 

compelled  to  answer  and  disclose  those  matters; 
and  if  the  disclosure  amounts  to  a  discharge,  he  is  en- 
titled to  the  full   benefit  of  it.     But  although  the  bill 

(387) 


330  SUPREME  COURT  OF  INDIANA. 

Green  and  Others  v.  Vardiman  and  Others. 

might  not  require  a  disclosure  of  the  matters  set  up  in 
avoidance,  yet  if  the  charge  and  discharge  arise  from 
one  indivisible  transaction,  and  the  answer  sets  forth 
that  transaction,  the  defendant  shall  have  the  full  benefit 
of  the  discharge.  But,  we  conceive,  the  principal  diffi- 
culty in  all  these  cases  turns  on  the  question,  what  facts 
in  the  answer  are  responsive  to  the  bill,  and  what  are  set 
up  in  avoidance.  Such  was  the  point  on  which  the  case 
of  Green  v.  Hcui  and  some  others  evidoiitly  turned. 
We  are  therefore  of  opinion  that,  when  the  answer  is 
confined  to  such  facts  as  are  necessarilj^  required  by  the 
bill,  and  those  that  are  inseparably  connected  with  them, 
forming  a  part  of  the  same  transaction,  the  answer  is  to 
be  taken  as  true  when  it  discharges,  as  well  as  when  it 
charges  the  defendant.  See  a  note  in  the  index  to  Johns. 
C.  Reports,  7  Vol.  p.  75,  as  to  the  opinion  of  the  Court  of 
Errors  in  Hart  v.  Ten  Eyck,  connected  with  a  remark  of 
Spencer,  J.  on  this  subject  in  Simson  v.  Hart,  14  Johns. 
R.  63.  In  the  case  before  us  the  answers  are  directly  re- 
sponsive to  the  requirements  of  the  bill,  and  are  to  be 
taken  as  true  notwithstanding  the  replication. 

But  it  must  be  further  observed  that  facts  set  forth  in 
an  answer  and  considered  as  true,  are  to  be  considered 
according  to  their  legal  import,  whether  they  amount  to 
a  discharge  or  not.  Hence,  it  becomes  necessar}^  to  ex- 
amine the  nature  of  the  facts  thus  set  up  by  the  answer. 
In  this  case,  the  transaction  between  John  T.  and  Wil- 
liam Vardiman,  respecting  the  tract  of  land  jointly  pur- 
chased by  them,  requires  attention.  There  is  a  consid- 
erable difference  between  the  bill  and  answer,  as  to  the 
part  which  each  paid  of  the  purchase-money;  but  the 
most  material  difference  arises  out  of  the  manner  in  which 
the  land  was  divided.  The  answer,  which  agreeably  to 
the  foregoing  rule  we  considered  as  true,  states  that  in  the 
division  of  the  land  John  T.  received  several  acres  more 
than  his  proportion,  and  also  a  spring  and  improvements; 
and  agreed  to  alloAv  William   75  dollars  as  the  difference 

(338) 


I^OVEMBER  TERM,  1830.  330-331 


Green  and  Others  i'.  Vardiman  and  Others. 


in  the  value  of  the  two  lots,  and  to  perform  an  equal  part 
of  the    labor  of  clearing  Hve  acres  and  erecting   build- 
ings on  William's  part,  equal  to  those  already  erected  on 
his  own  part;  that  each  took  possession  of  his 
P3311    ^respective  part,  and  remained  in  the  quiet  enjoy- 
ment of  it.  The  bill  states  that  if  such  an  arrange- 
ment did  take  place,  it  was  void  by  the  act  for  preventing 
frauds  and  perjuries.     But  we  conceive  that  that  act  is  not 
applicable  to  the  case:     First,  the  agreement  as  to   the 
division  line,  and  as  to  the  payment  of  the  difference  in 
value   between   the   two  lots,  is    not  within  the  act.     A 
parol  agreement  to  abide  by  a  division  line  is  obligatory. 
Jackson  v.  Dysling,  2  Caines,  198.     And  when  a  tract  of 
land  held  jointly  by  two  can  not  be  equally  divided  m 
point  of  value,  an  agreement  by  one  to  pay  the  other  the 
difference  in  value  is  not,  we  conceive,  within  the  terms 
of  the  act ;  for  the  act  contemplates  a  transfer  of  lands  or 
some  permanent  interest  in  them.     Bostwick  v.  Leach,  3 
Day's  Cas.  476.     And  a  promise  to  pay  for  improvements 
made  on  land  is  not  within  the  act.     Frear  v.  ffardenbergh, 
5  Johns.  R.  272.  So  an  agreement  to  abate  in  the  price,  what 
the  land"  falls  short  of  the  number  of  acres  named  in  the 
deed,  is  not  within  the  act.     3fott  v.  Hurd,  1    Root,  73. 
Secondly,  the  agreement  to  make  an  allowance  tor  the 
diffcrcnco  in  the  quantity  of  land,  under  the  peculiar  cir- 
cumstances of  the  case,  is  not  within  the  act.     Viewing  it 
as  a  contract  for  the  sale  of  land,  it  comes  within  one  of 
the  exceptions  that  equity  has  always  raised  to  the  act— a 
partial  execution  of  the  contract,  and  an  execution  so  far 
as  it  was  in  the  power  of  the  parties  at  that  time.     From 
the  manner  of  the  original  payments,  it  socms  that  Wil- 
liam was  indebted  to  John  T.  for  a  part  of  the  original 
purchase-monev.     So  it  may  be  said  that  John  T.  had 
paid  William  for  this  land,  and  had  received  quiet  posses- 
sion of  it.     So  that  if  William  had  held  the  title,  John  T. 
■     mieht  have  enforced  a  specific  performance  of  the  con- 
tract •  or,  as  the  title  was  virtually  in  John  T.,  if  he  had 

(389) 


331-332    SUPREME  COURT  OF  INDIANA. 

Cowgill  V.  Wooden,  Sheriff. 

not  paid  the  purchase-money,  William  could  have  recov- 
ered it;  for  an  agreement  to  pay  money  in  consideration 
of  the  conveyance  of  land  is  not  within  the  act,  after  the 
conveyance  has  been  executed.  Chapman  v.  Allen,  Kirby, 
400.  But  William  had  no  title  to  the  land.  He  had  only 
an  equitable  claim,  arising,  as  far  as  appears,  by  parol — a 
trust,  resulting  from  the  payment  of  the  purchase-money; 
and  such  a  trust  has  never  been  considered  within  the  act. 
Besides,  that  right  which  originated  by  parol  may  be  re- 
linquished by  parol.  When  John  T.  agreed  to  allow  Wil- 
liam so  much  for  the  difference  in  the  quantity 
[*382]  *of  land,  the  transaction  is  more  in  the  nature  of 
lessening  William's  claim  upon  him,  than  of  a  pur- 
chase of  so  much  land.  Moreover,  as  John  T.  held  the 
certificate  and  would  receive  the  title  for  the  whole  tract, 
it  would  be  impossible  for  William  to  coerce  a  convey- 
ance of  any  part  of  the  land  without  showing  a  clear 
equity;  and  surely  he  could  show  no  equity,  as  to  the  land 
he  had  thus  voluntarily  relinquished  for  a  valuable  con- 
sideration, either  executed  by  payment,  or  executory  by 
promise.  Thus  we  see  nothing  exceptionable  in  this  ar- 
rangement, and  nothing  to  prevent  the  administrators  of 
John  T.  from  setting  up  a  discharge  of  this  claim  of  Wil- 
liam, as  a  legal  defence  against  so  much  of  the  complain- 
ants' demand.  There  are  no  other  facts  in  the  answers 
that  require  particular  attention.  And  we  are  of  opinion 
that  they  present  a  full  answer  to  all  the  allegations  of  the 
complainants. 

Per  Curiam. — The  decree  is  affirmed  with  costs. 

Smith,  for  the  plaintiffs. 

Hariden,  for  the  defendants. 


Cowgill  v.  Wooden,  Sheriff. 

Justice  op  Peace — Defences— Pleading. — The  statute  of  1827  requires 
that,  in  justices'  Courts,  special  matters  of  payment  and  set-off  should  be 

(390) 


NOVEMBER  TERM,  1830.  332-333 

Cowgill  I'.  Wooden,  Sheriff. 

stated  in  writing ;  but,  in  other  cases  generally,  special  pleas  are  not  nec- 
essary in  those  Courts. 

Same. — In  a  cause  commenced  in  a  justice's  Court,  the  defendant  may 
without  pleading  the  general  issue,  give  any  matters  in  evidence  which, 
under  that  plea,  are  admissible  in  other  Courts. 

Same — Right  to  Jury. — A  party  has  the  same  right  to  a  jury,  in  a  cause 
commenced  by  notice  and  motion,  that  he  has  in  other  cases. 

Jury — Challenge  of — Choscn  by  PARTY.^If  the  sheriff,  a  party  in  the 
cause,  have  summoned  the  jurors  selected  under  the  statute  of  1827,  the 
array  may,  for  that  reason,  be  challenged. 

Judicial  Sale — Liability  of  Purchaser. — If  a  purchaser  of  real  estate 
at  sheriff's  sale  refuse  to  pay  the  purchase-money,  and  the  property  be  sold 
for  a  less  sum  at  a  second  sale,  the  liability  of  the  first  purchaser  for  the 
difference,  under  the  statute  of  1825,  may  be  established  by  parol  evi- 
dence. 

Same — Right  of  Officer  as  to  Bid. — The  sheriff  is  not  obliged  to  take 
the  mere  word  of  any  person,  who  may  bid  at  a  sheriff's  sale,  that  he  is 
the  agent  of  the  execution-creditor. 

Justice — Jurisdiction. — A  justice  of  the  peace  has  jurisdiction  of  a  cause 
commenced  by  notice  and  motion,  if  the  notice  set  forth  a  claim,  not  ex- 
ceeding 100  dollars,  for  which  debt  or  assumpsit  would  lie. 

APPEAL  from  the  Owen  Circuit  Court. 

Blackford,  J. — Wooden  sued  Cowgill  before  a 
[*333]  justice  of  the  '^'peaee  b}^  notice  and  motion.  The 
substance  of  the  notice  is,  that  the  plaintiff,  as 
sheriff'  of  Owen  county,  offered  certain  real  estate  for  sale 
on  execution,  and  struck  off'  the  same  to  the  defendant 
as  the  highest  bidder ;  that  the  defendant  having  refused 
to  pay  the  purchase-money,  the  plaintiff  re-sold  the  land 
to  the  highest  bidder  at  the  second  sale,  for  74  dollars  and 
99  cents  less  than  the  first  bid;  and  that  the  defendant 
was  liable  to  the  plaintiff'  for  that  sum.  The  defendant 
before  the  justice  pleaded,  previously  to  the.  trial,  six  spe- 
cial pleas  in  bar.  A  replication  was  filed  to  one  of  them, 
and  a  general  demurrer  to  four  of  the  others.  The  re- 
maining one  seems  to  have  passed  unnoticed.  Whilst  the 
trial  was  progressing,  the  defendant  put  in  a  seventh  plea, 
denying  generally  the  whole  cause  of  action.  The  justice 
tried  the  cause  on  the  merits,  and  gave  judgment  in  favor 
of  the  plaintiff  for  the  amount  claimed  in  the  notice.  •  The 

(391) 


333-334   SUPREME  COURT  OF  INDIANA. 

Cowgill  V.  Wooden,  Sheriff. 

defendant  appealed  to  the  Circuit  Court.  The  questions 
raised  by  the  demurrers  to  the  special  pleas  were  argued 
in  the  Circuit  Court,  and  all  those  pleas,  except  one,  were 
adjudged  to  be  good  bars  to  the  action.  A  jury  was  then 
impaneled  on  motion  of  the  plaintift",  the  merits  of  the 
cause  tried  without  objection,  and  a  verdict  and  judgment 
rendered  for  the  plaintiff. 

One  of  the  pleas  was  that  of  the  statute  of  frauds.  The 
others  were  intended  to  show  that  the  defendant  did  not 
bid  for  himself;  but  that  he  acted  only  as  agent  of  the 
creditor,  under  whose  execution  the  land  was  sold,  to  the 
amount  of  his  claim;  and  as  to  the  residue  of  the  sum 
bid,  that  he  acted  as  agent  of  another  execution-creditor, 
who  was  entitled  to  the  surplus.  This  special  pleading 
is  unnecessary  in  justices'  Courts.  By  the  statute  of  1827, 
p.  30,  special  matters  of  payment  and  set-otf  must  be 
stated  in  writing,  but  no  special  pleas  are  required  in  mat- 
ters of  defence  like  those  relied  on  in  the  present  case. 
The  seventh  plea,  which  was  the  general  issue,  was  filed 
too  late  to  be  available,  had  it  been  necessary.  But  as 
the  parties  went  to  trial  on  the  merits,  the  case  must  be 
considered  now  as  if  the  general  issue  had  been  pleaded. 
Indeed,  the  defence  here  made  required  no  plea  in  writ- 
ing, either  general  or  special,  in  a  justice's  Court.  "We 
shall  examine  the  record  before  us,  therefore,  without  any 
reference  whatever  to  the  validity  of  the  pleas  filed 
[*334]  by  the  defendant,  considering  him  to  have  *had 
the  right  to  prove  his  defence  if  a  good  one,  with- 
out any  written  j^leas  (1). 

The  first  bill  of  exceptions  shows  that,  on  application 
of  the  plaintiff",  the  Circuit  Court  impaneled  a  jur}^  to  tiy 
the  cause.  This  was  correct.  There  were  matters  of  fact 
to  be  determined,  and  a  jury  was  the  proper  tribunal  to 
try  them.  Daicson  v.  Shace?^  Xov.  term,  1822  (2).  It  also 
appears  by  this  bill  that  the  regular  panel  of  jurors  had 
been  summoned  by  the  plaintift'  as  sherift"  of  the  county; 
that  the  Court  overruled  a  challenge  to  the  array  founded 

(392) 


NOVEMBER  TERM,  1830.  334-335 


Cowgill  V.  Wooden,  Sheriff. 


on  that  cause;   and  that  the  coroner  selected,  from  the 
regular  panel,  the  twelve  jurors  who  tried  the  case.    This 
challenge  should  have  been  sustained.      It  is  true,  the 
sheriff  has  not,  under  our  statute,  the  same  discretion  in 
summoning  jurors  that  he  formerly  had.     Stat.  1827,  p. 
29  (3).     He  would,  however,  now  have  a  decided  advan- 
tage over  his  opponent  in  a  cause,  had  he  the  right  to  ex- 
ecute the  venire.     Some  jurors,  whose  names  were  in  the 
venire,  might  be  too  intelligent  or  too  independent  to  suit 
his  purpose.    These  he  could  omit  to  summon.    The  cause 
of  challenge  relied  on  in  this  case  is  considered  in  New 
York,  under  a  statute  for  selecting  jurors  similar  to  ours, 
to  be  sufficient  to  quash  the  array.     Woods  v.  Roican,  5 
Johns.  R.  133. 

According  to  the  second  bill  of  exceptions,  the  defend- 
ant's bid  was  not  reduced  to  writing ;  nor  is  any  such  for- 
mality required  by  the  statute  under  which  he  was  charged. 
Stat.  Dec.  1825,  p.  50.     The  statute  provides,  that  if  the 
highest  bidder  does  not  pay,  he  shall  be  liable  to  a  certain 
extent,  should  the  land  bring  less  at  a  second  sale.     It 
appears  to  us,  that  the  fact  of  the  defendant's  being  the 
highest  bidder,  as  charged  in  the  notice,  might  be  proved 
by  parol      These  bids  at  sheriffs'  sales  are  always  made 
publicly  and  by  parol,  and  may  be  proved  by  the  persons 
present.     The  cause  of  action  grows  out  of  the  defend- 
ant's default  in  not  following  up  his  bid  by  a  payment  of 
the  money.     The  case  stands  independent  of  the  statute 
of  frauds.     If  he  made  the  bid  and  refused  compliance, 
he  is  liable  under  the  statute  of  1825 ;  and  his  liability 
may  be  established  by  parol  evidence  (4).     It  is  further 
stated  by  this  bill,  that  the  defendant  offered  to  prove  that 
he  was  the  agent  of  the  first  execution-creditor,  in  bid- 
ding to  the  amount  of  his  execution,  and  the  agent  of 
another  execution-creditor  entitled  to  the  residue 
P335]    of  the  *bid;  but  that  the  sheriff  had  no  evidence 
of  the  defendant's  agency,  except  his  own  declar- 
ations at  the  sale.     The  Circuit  Court  refused  to  receive 

(393) 


335  SUPREME  COURT  OF  INDIANA. 

Cowgill  V.  Wooden,  Sheriff. 

this  testimony,  and  we  thiuk  correctly.  The  sherifl  was 
not  bound  to  take  the  bare  word  of  any  person  who  might 
choose  to  bid  and  call  himself  an  agent  of  the  execution- 
creditor.  Were  that  the  law,  the  sheriff  would  have  no 
means  of  avoiding  serious  and  frequent  imposition. 

The  third  bill  of  exceptions  states  that  the  defendant 
below  oifered  in  evidence  a  deed  from  the  debtor  to  a 
purchaser  for  value,  made  before  the  judgment.  This 
evidence  was  rejected.  The  defendant's  object  was  to 
raise  the  question  whether  he  was  liable,  if  tlie  land  bid 
for  was  not  the  debtor's  at  the  time.  The  record,  how- 
ever, does  not  show  what  land,  if  any,  was  conveyed  by 
this  deed ;  and  the  question,  therefore,  intended  to  be 
presented  does  not  arise  in  this  case. 

The  last  bill  of  exceptions  shows  that  an  objection  to 
the  jurisdiction  of  the  Court  was  overruled.  This  objec- 
tion is  founded  on  the  idea  that  the  justice  had  no  juris- 
diction in  the  case  of  a  notice  and  motion  like  the  present. 
By  the  statute  of  1827,  p.  30,  the  justices' jurisdiction  is 
extended  to  100  dollars  in  actions  of  debt  and  assumpsit. 
The  statute  of  1825,  authorizing  a  notice  and  motion  in 
these  cases,  in  any  Court  having  jurisdiction,  does  not 
require  a  particular  name  to  be  given  to  the  action.  The 
notice  before  us  sets  forth  a  demand  not  exceeding  100 
dollars,  for  which  debtor  assumpsit  would  lie;  and  con- 
sequently exhibits  a  case  within  the  jurisdiction  of  a  jus- 
tice of  the  peace  (5). 

The  only  error  in  these  proceedings  is,  the  overruling 
of  the  challenge  to  the  array.  The  judgment,  on  that 
ground,  must  be  reversed. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside  with  costs.     Cause  remanded,  &c. 
Whitcomh  and  Gregg,  for  the  appellant. 
Hester,  for  the  appellee. 

(1)  For  the  pleadings  required  injustices'  Courts,  vide  K.  C.  1831.  p.  301. 
The  defendant  always  has  the  benefit  of  the  general  issue  in  a  justice's 
Court,   without   pleadinij  it ;  except  the   execution   of  at.   instrument   of 

(894) 


NOVEMBER  TERM,  1830.  335-336 


The  State,  for  the  use  of  Putney  v.  Hicks  and  Others. 


writing,  which  is  the  foundation  of  the  action,  be  denied;  in  which  case 
There  must  be  a  plea  filed  supported  by  oath  or  affirmation.     Ibid. 

(2)  Vol.  1.  of  these  Rep.  204. 
[«33G]  «(3)  Accord.  R.  C  1831,  p.  291. 

(4)  If  the  purchaser  neglect  or  refuse  to  pay,  he  is  liable,  on  motion 
of  the  officer  makin'g  the  sale,  to  a  judgment  for  the  P"-h^se- jney  a  d  t.^^^ 
i.Pr  cent  with  costs,  without  any  stay  ot  execution.  Provided,  novve\ei, 
hat  the  officer  may  on  the  day  of  sale  or  on  a  subsequent  day,  re-expose 
t  e  p-operfy  to  ak  and  should  the  amount  of  the  second  sale  not  be  equal 
lothat'ofX  first  and  the  costs.of  the  second  -V.^!' 1833? 65 
liable  for  the  deficiency,  on  motion  ot  the  officer,  btat.  i«c.c.,  p.  oo. 
(5)  Vide  Washhurn  v.  Payne,  ante,  p.  216,  and  note. 


The  State,  for  the  use  of  PutxNey  v.  Hicks  and  Others. 

Pkactice-Oyer-Error.-To  deny  oyer  where  it  ought  to  be  granted  is 

error,  but  not  e  converso.  ,       ,         •         ^i 

Official  BoND-DEFENCE.-In  an  action  in  a  sheriff's  bond  against  the 
principal  and  his  sureties,  for  money  collected  by  the  sheriff"  on  an  exe- 
cution in  favor  of  the  plaintiff;  the  defendants  can  not  plead  that  there  is 
no  judgment  on  which  the  execution  issued  (a). 

APPEAL  from  the  Scott  Circuit  Court. 

Scott,  J.— This  record  presents  the  following  case:    In 
the  year  1827,  while  Hicks  was  sherift  of  Scott  county, 
an  action  was  brought  against  him  and  his  sureties,  on 
his  official  bond,  at  the  instance  of  Thomas  M'Camet,  and 
for  his  benefit.     On  the  19th  of  July,  in  that  year,  judg- 
ment wiis  rendered  for  5,000  dollars,  the  penalty  of  the 
bond,  and  damages  were  assessed  in  fovor  of  M'Camet, 
to  the  amount  of  26  dollars  and  47  cents.     On  the  11th 
of  December,  in  the  same  year,  Richard  E.  Putney  sued 
out  of  the  office  of  the  clerk  of  the  Scott  Circuit  Court, 
and  placed  in  the  hands  of  Hicks  an  execution  of  fieri 
facias  ao-ainst  Daniel  W.  Griffith  and    his  sureties  on  a 
replevin%ond  for  the  sum  of  122  dollars  and  82  cents, 
which  money  Hicks  collected  on  said  execution,  and  re- 
fused to  pay  over  to  Putney,  the  execution-plaintiff,  on 

(a)  32  Ind.  104 ;  37  Id.  457. 

(395) 


336-337    SUPREME  COURT  OF  II^DIANA. 

The  State,  for  the  use  of  Putney  v.  Hicks  and  Others. 

request.  On  the  18th  of  March,  1829,  Putney  sued  out, 
in  the  name  of  the  state,  of  Indianu,  his  scire  facias  against 
Hicks  and  his  sureties,  to  recover  the  amount  collected 
on  his  execution,  under  the  provisions  of  the  statute  of 
1824.  The  defendants  craved  oyer  of  the  judgment  or 
replevin-bond  on  which  the  execution  issued,  and  demur- 
red to  the  scire  facias.  The  demurrer  was  overruled. 
They  then  filed  two  pleas;  first,  that  there  was  not 
any  record  of  the  said  supposed  judgment  and  replevin- 
bond,  on  which  the  said  execution  was  issued  j 
[*337]  "^and,  secondly,  that,  before  the  suing  out  of  the 
scire  facias,  the  plaintift"  had  instituted  a  pro- 
ceeding by  motion,  in  the  Scott  Circuit  Court,  against 
the  defendant  Hicks  for  the  same  demand ;  which  proceed- 
ing was  still  depending  and  undetermined.  There  was  a 
demurrer  to  the  first  plea.  To  the  second  the  plaintiff 
replied  nul  tiel  record,  on  which  issue  was  joined,  and 
judgment  on  that  issue  was  for  the  plaintiff.  The  de- 
murrer to  the  first  plea  was  overruled,  and  judgment  ren- 
dered for  the  defendants ;  and  to  reverse  that  judgment 
is  the  object  of  this  appeal. 

Two  special  errors  are  assigned:  1st,  that  the  Court 
erred  in  granting  oyer  of  the  judgment  or  replevin-bond  j 
and,  2dly,  that  the  validity  of  the  judgment  or  replevin- 
bond  could  not  be  inquired  into  by  the  defendants  in  this 
suit.  We  think  there  is  nothing  in  the  first  assignment. 
To  deny  oyer  where  it  ought  to  be  granted  is  error,  but 
not  e  converso.  Tidd's  Pr.  530 ;  2  Ld.  Raym.  970.  See, 
also,  2  Salk.  497;  2  Str.  1186;  1  Wils.  16  (1).  The  sec- 
ond assignment  rests  on  better  authority.  In  thecase  of 
Wakefield  v.  Lithgoin,  3  Mass.  Rep.  251,  it  was  decided, 
that  where  a  sherifl'  collected  money  on  an  execution,  he 
is  bound  to  pay  it  over  to  the  execution-plaintift'on  de- 
mand. Where  the  writ  is  from  a  Court  of  competent 
jurisdiction,  an  error  or  irregularity  in  the  rendition  of 
the  judgment,  or  in  the  previous  proceedings,  furnishes 
no  excuse  to  the  officer  for  withholding  the  money.     The 

(396) 


NOVEMBER  TERM,  1830.  337-338 


Blaney  v.  Findley  and  Others. 


sheriff  recognized  the  legality  and  authority  of  the  exe- 
cution by  acting  upon  it ;  and,  after  having  collected  the 
money,  it  is  not^for  him  to  say  that  the  writ  was  illegal  or 
unauthorized  by  the  judgment.  In  the  case  of  Smith  v. 
Boiclrr,  1  Mass.  Rep.  81,  ir  was  held  that  the  officer  is 
not  holdeii  to  look  beyond  his  execution ;  and,  whether 
the  judgment  be  erroneous  or  not,  is  a  question  with 
which  he  has  nothing  to  do.  See,  also,  The  People  v. 
Waters,  1  Johns.  Cas.  137.  The  judgment  must  be  re- 
versed. 

Per  Curiam.— The  judgment   is   reversed  with   costs. 

Cause  remanded,  &c. 

Stevens,  for  tlu  appellant. 
Thornton,  for  the  appellees. 

(1)  Osborne  e(  al  v.  Reed,  Vol.  1,  of  these  Rep.  126.  The  parly  to  whom 
oyer  is  improperly  granted  can  not  complain,  the  error  being  to  his  advan- 
tage.    2  Ld.  Raym.,  cited  in  the  text. 


[*338]  *Blaney  v.  Findley  and  Others. 

Judgment— Reversal— Practice.— If  the  facts  relied  on  to  reverse  a 
judgment  be  not  shown  by  the  record,  and  the  judgment  would  be  au- 
thorized by  any  facts  which  might  have  been  legally  before  the  Court, 
the  judgment  must  be  affirmed  (a). 

Attachment-Bond— Approval— Practice.— An  attachment-bond  must 
be  approved  of  by  the  clerk  who  issued  the  writ.  His  approval,  however, 
is  not  conclusive  but  only  prima  facie  evidence  of  the  sufficiency  of  the 
sureties. 

ERROR  to  the  Jefferson  Circuit  Court. 

HoLMAN,  J.— Blaney  commenced  a  suit  by  foreign  at- 
tachment against  Findley,  Harrison  and  Burnett,  in  the 
Jefferson  Circuit  Court.  The  writ  issued  on  the  23d  of 
June,  1829,  and  was  levied  the  same  day  on  the  lands  of 
Burnett,  and  returned   at  the  July  term  of  said  Court. 

(a)  See  51  Ind.  271 ;  1  Id.  263  ;  60  Id.  37  ;  37  Id.  145. 

(397) 


338-339   SUPREME  COURT  OF  INDIAI^A. 

Blaney  v.  Findley  and  Otherf?. 

At  that  term  notice  of  the  pendency  of  the  attachment 
was  ordered  to  be  published.  In  the  ensuing  vacation 
the  defendants  entered  special  bail.  At  the  next  term 
the  plaintiff' filed  his  declaration,  and  the  defendant  moved 
the  Court  to  quash  the  attachment  and  dismiss  the  suit, 
because,  1st,  the  affidavit  on  which  the  proceedings  are 
founded  is  informal  and  insufficient  in  law  to  warrant  the 
issuing  of  the  attachment;  2dly,  the  writ  of  attachment 
is  informal  and  erroneous;  3dly,  the  bond,  given  by  the 
plaintiff,  is  informal  and  insufficient  in  several  particu- 
lars, to  wit,  1st,  the  sureties  are  insufficient  in  a  pecuniary 
point  of  view;  2dly,  the  plaintiff"  and  his  sureties  reside 
in  Floyd  county;  3dly,  the  clerk  of  the  Jefferson  Circuit 
Court,  who  issued  the  attachment,  did  not  approve  of  the 
bond  and  sureties.  The  Court  sustained  the  motion,  and 
set  aside  the  proceedings,  and  gave  the  defendants  a 
judgment  for  costs. 

There  is  no  bill  of  exceptions  to  show  us  on  what 
grounds  the  Court  decided ;  but  as  the  presumption  of 
law  is  in  favor  of  the  decision,  if  there  were  any  facts  that 
could  have  been  legally  before  the  Court  that  would  au- 
thorize their  judgment,  we  are  bound  to  sustain  it.  The 
affidavit  states  that  the  defendants  were  "justly  indebted," 
instead  of  saying  in  the  words  of  the  act  of  assembly,  that 
the  debt  was  "justly  due  and  owing."  If  this  case  rested 
solely  on  the  objection  to  this  affidavit,  it  would  demand 

particular  attention ;  as  it  is,  we  shall  pass  it 
[*339]    *with  a  single  remark,  that  it  is  always  safe  to  use 

the  terms  of  the  act  of  assembly,  and  frequently 
unsafe  to  use  others.  The  bond  in  this  case,  it  seems  by 
a  statement  in  the  record,  was  taken  and  acknowledged 
before  a  justice  of  the  peace  of  Floyd  county,  who  is  cer- 
tified to  be  a  justice  of  the  peace  by  the  clerk  of  the  Floyd 
Circuit  Court.  The  said  clerk  also  certified  that,  in  his 
opinion,  the  sureties  were  responsible  men  and  good  for 
the  penalty  of  the  bond.  This  bond  was  filed  in  the  oflfice 
of  the   Jefferson   Circuit    Court   before    the   attachment 

(398) 


NOVEMBER  TERM,  1830.  339-340 

BUiney  v.  Findley  and  Others. 

issued.  The  act  of  assembly  requires,  that  the  bond  and 
sureties  shall  be  approved  of  by  the  clerk  who  issues  the 
attachment.     R.  C.  1824,  pp.  67,  69  (1). 

The  first  objection  to  the  bond  is,  that  the  sureties  were 
insufficient.  The  bond  is  in  the  penalty  of  7,000  dollars, 
and  the  clerk  of  the  Floyd  Circuit  Court  certifies  that  the 
sureties  are  good  for  that  amount.  This  certificate,  not 
being  official,  is  a  mere  private  opinion  in  writing,  and 
inadmissible  as  evidence  of  the  fact  thus  certified.  What 
evidence  was  before  the  Court  of  the  insufficiency  of  the 
sureties,  is  unknown  to  us;  but  that  they  might  have  had 
satisfactory  evidence  of  the  fact,  and  might  have  dismissed 
the  suit  for  want  of  sufficient  sureties,  is  ample  ground 
on  which  to  sustain  their  decision.  But  it  is  contended 
that,  before  the  Court  dismissed  the  suit  for  the  want  of 
sufficient  sureties,  they  should  have  given  the  plaintiff  an 
opportunity  of  perfecting  his  bond.  We  do  not  know  that 
the  plaintiff  desired  such  a  privilege,  or  was  in  a  condition 
to  have  profited  by  it;  nor  do  we  know  what  the  Court 
did  or  refused  to  do  on  the  subject.  Whatever  might  have 
been  said  or  done  about  this  matter,  forms  no  part  of  a 
regular  record.  It  was  unnecessary  for  the  Court,  in  order 
to  justify  their  decision,  to  show  of  record,  that  they  called 
upon  the  plaintiff  to  file  a  new  bond,  and  that  he  refused 
to  do  so.  This  objection  to  the  bond  might  be  sustained, 
if  it  were  certain  that  the  clerk  had  approved  of  the  sure- 
ties, which  the  defendants  contend  was  not  the  fact,  as 
the  approval  of  the  clerk,  though  priyna  fa 'ie  evidence  of 
the  sufficiency  of  the  sureties,  is  not  conclusive.  The  de- 
fendant may  show  that  the  fact  is  otherwise;  and  the 
Court  has  a  superintending  control  over  the  discretion 
thus  exercised  by  the  clerk.  It  is  objected  that  this 
motion  was  made  too  late;  but  as  it  was  made  at 
[*340]  the  first  term  after  notice  was  given  *of  the  pen- 
dency of  the  attachment,  and  at  the  first  appear- 
ance of  the  defendants,  this  objection  cannot  be  supported. 

(399) 


1^0  SUPREME  COURT  OF  INDIANA. 

Knipe  v.  Knipe. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 
SullUan  and  Farnham,  for  the  plaintiff. 

Stevens,  for  the  defendants. 

(1)  Accord.  R.  C.  1831,  pp.  75,  82. 


Knipe  v.  Knipe. 

Statute  Limitations— Running  Accounts. — In  1804,  the  father  of  B. 
and  C.  delivered  to  B.,  in  England,  75/.,  with  directions  to  pay  the  same 
to  C.  on  the  latter's  arrival  in  America.  In  1818,  C.  came  to  America 
where  B.  was  then  resident,  and  accounts  on  both  sides  immediately 
commenced  between  them,  and  continued  running  until  1826.  The  75/. 
was  charged  in  the  account  of  C.  again.st  B.  Held,  that  these  mutual  ac- 
counts, including  the  75/.,  were  not  within  the  statute  of  limitations; 
some  of  the  items  having  been  furnished  within  five  years  before  the  com- 
mencement of  the  suit. 

ERROR  to  the  Wayne  Circuit  Court. 

Scott,  J. — Thomas  Knipe  brought  an  action  of  debt 
against  John  Knipe  in  the  Wayne  Circuit  Court.  In  the 
declaration  the  defendant  is  charged,  among  other  things, 
for  money  had  and  received  and  interest  thereon.  The 
defendant  pleads  to  so  much  of  the  plaintiff's  declaration 
as  goes  to  charge  him  with  money  had  and  received,  and 
interest  thereon,  that  no  action  accrued  to  the  plaintiff 
within  live  years  nex-t  before  the  commencement  of  the 
suit.  The  plaintiff  replies  that  the  money  had  and  received 
and  the  interest  thereon,  were  items  in  an  account  cur- 
rent commenced  in  the  year  1818,  and  continued  ruiming 
open,  and  unsettled,  until  the  year  1826;  and  that  the 
last  item  of  the  said  account  accrued  within  five  years 
next  before  the  commencement  of  the  suit.  The  defend- 
ant rejoins,  that  the  said  supposed  money  was  not  an  item 
in  the  account  current  between  the  said  parties ;  but  that 
the  same  was  received,  if  received  at  all,  more  than  five 
years  before  the  commencement  of  the  said  mutual  deal- 

(400) 


NOVEMBER  TERM,  1830.  340-341 

Kiiipe  V.  Knipe. 

ings;  and  concludes  to  the  country.  On  the  rejoinder 
issue  is  joined.  There  are  other  pleas  and  issues,  but  the 
only  objection  to  the  judgment  grows  out  of  the  issue 
stateti.     As  no  exception  was  taken  to  these  pleadings  in 

the  Circuit  Court,  we  will  now  inquire  into  their 
[*341]    ^correctness.     It  may  be  remarked,  however,  that 

the  rejoinder  contains  two  allegations,  the  first  of 
which  only  responds  to  the  replication,  and  is  that  only 
on  which,  without  a  surrejoinder,  an  issue  could  regularly 
have  been  taken.  The  issue,  then,  may  be  considered  as 
taken  on  the  first  member  of  the  rejoinder,  and  the  other 
part  may  be  rejected  as  surplusage.  This,  with  other 
issues,  was  submitted  to  the  jury,  and  there  was  a  general 
verdict  for  the  plaintiflf.  A  motion  for  a  new  trial  was 
made  by  the  defendant's  counsel,  and  overruled  by  the 
Court.     Judgment  on  the  verdict. 

It  was  in  proof,  as  appears  by  a  bill  of  exceptions,  that 
the  defendant  had  admitted,  at  diflFerent  times,  that  he 
had  received  of  his  father,  in  England,  150  pounds  ster- 
ling, in  the  year  1804,  one-half  of  which  was  for  the 
plaintift',  who  was  at  that  time  a  resident  of  England  ; 
that  the  said  money  was  to  be  paid  to  the  plaintiiF  when 
he  should  arrive  in  America ;  that,  on  his  arrival  in  Amer- 
ica, the  defendant  was  to  furnish  him  with  necessaries  for 
his  family  subsistence  for  one  year,  the  cost  of  which  was 
to  be  taken  out  of  his  part  of  the  money ;  that  plaintitt" 
came  to  America  in  1818;  that  accounts  on  both  sides 
commenced  at  that  time  between  the  said  parties,  for  mu- 
tual dealings  in  other  matters  together  with  the  necessa- 
ries aforesaid,  and  continued  open  and  running  between 
them  on  both  sides  until  the  year  1826;  that  the  said 
money  was  charged  in  the  plaintiff''s  account,  but  whether 
with  or  without  the  knowledge  of  the  defendant  was  not 
proved,  and  that  the  accounts  on  both  sides  still  stood 
open  till  the  commencement  of  this  suit.  The  jury,  in 
their  verdict,  included  the  sum  of  75?.  sterling,  with  inter- 
est thereon  from  September,  1818.  On  this  ground  the 
Vol.  II.— 26  (401) 


341-342    SU'KREME  COURT  OF  INDIANA. 

Knipe  t.  Knipe. 

motion  for  a  new  trial  was  predicated  ;  and  on  this  ground 
the  plaintitt'  in  error  claims  a  reversal  of  the  judgment. 
It  is  alleged  by  the  plaintiff  in  error  that  the  75/.,  ji 
moiety  of  the  150/.,  having  been  received  in  England  so 
long  before  the  commencement  of  the  mutual  dealings  of 
the  parties  in  America,  could  not  be  considered  as  form- 
ing an  item  in  their  account  current.  The  money  received 
in  England  was  to  be  paid  to  the  defendant  in  error  on 
his  arrival  in  America,  which  it  appears  was  in  1818.  No 
action  accrued  to  him  till  that  time.  Immediately  on  his 
arrival  he  was,  by  agreement,  to  be  furnished  with 
[*342]  necessaries  for  his  family  subsistence  out  *of  that 
fund.  It  is  natural  and  reasonable  in  this  state 
of  their  transactions,  that  Thomas  Knipe,  the  defendant 
here,  in  keeping  a  regular  account  of  his  dealings  with 
John  Knipe,  would  place  the  money,  in  the  hands  of  John, 
on  the  debit  side  of  the  account,  and  credit  the  different 
sums  of  money  or  other  articles  as  he  received  them. 
This  would  be  honest  dealing.  And  had  the  parties 
thought  proper  to  close  their  business  and  adjust  their 
accounts  within  two  or  three  years,  no  one  would  suppose 
that  this  deposit,  in  the  hands  of  John,  would  be  omitted 
in  balancing  their  mutual  accounts.  Then  if  that  money 
was,  at  any  time,  so  connected  with  the  mutual  dealings 
of  the  parties,  that  a  fair  and  honest  settlement  of  their 
accounts  could  not  be  made  without  taking  it  into,  the 
calculation,  it  must  remain  an  item  until  their  accounts 
are  finally  liquidated.  The  circumstance  of  -the  later 
items  being  of  so  recent  a  date,  as  to  be  within  the  limit ' 
of  the  statute,  was  a  sufficient  justification  of  the  verdict. 
2  Saund.  127,  m  6;  6  T.  R.  189  (1). 

Per  Curiam. — The  judgment  is  affirmed,  with  '2  per  cunt, 
damages  and  costs. 

Bariden,  for  the  plaintiff. 

Smith,  for  the  defendant. 

(1)  "  Such  accounts  as  concern  the  trade  of  merchandise  between  mer- 
chant and  merchant  are  excepted  from  the  operation  of  the  statute.    Where 

(402) 


NOVEMBER  TERM,  1830.  342-343 


Larkin  v.  Wilburn,  in  Error. 


there  have  been  mutual,  current,  and  unsettled  accounts  between  the  par- 
ties, and  any  of  the  items  are  within  six  years,  such  items  are  evidence  (un- 
der the  replication  that  the  defendant  did  promise,  &c.)  as  an  admission  of 
there  being  an  open  account,  so  as  to  take  the  case  out  of  the  statute,  like 
any  other  acknowledgement.  Catling  v.  Skoulding,  6  T.  R.  189 ;  2  Saund. 
127,  a.  n.  But  where  all  the  items  are  on  one  side,  the  statute  is  a  bar  to 
all  demands  above  six  years'  standing.  Cotes  v.  Harris,  B.  N.  p.  149. 
Where  there  are  mutual  accounts,  but  no  item  of  account  at  all  within  six 
years,  the  plaintiff  may  reply  specially  to  the  plea  of  the  statute,  that  the 
accounts  are  merchants'  accounts.  2  Saund.  127,  c.  n.  But  it  has  been  held 
in  equity  that  merchants'  accounts  are  within  the  st^jtute,  if  they  have 
ceased  six  years.  Barber  v.  Barber,  18  Ves.  286.  And  see  Jones  v.  Pengree, 
6  Ves.  580  ;"  Martin  v.  Healhcote,  2  Eden,  169.  The  clause  in  the  statute  as 
to  merchants'  accounts  is  not  confined  to  persons  actually  merchants.  Cat- 
ling v.  Skoulding,  6  T.  E.  191."  Roscoe  on  Ev.  261.  See,  also,  Cogstvell  v. 
Dolliver,  2  Mass.  217  ;  Coster  v.  Murray,  5  Johns.  C.  R.  522 ;  Kimball  v. 
Brown,  7  Wend.  322  ;  Buntin  v.  Lagow,  Vol.  1  of  these  Rep.  373 ;  R.  C. 
1831,  p.  401.  With  the  respect  to  the  exception  in  the  statute  as  to  mer- 
chants^ accounts,  see  the  subject  fully  discussed,  and  most  of  the  authorities 
cited,  by  Mabshall  C.  J.,  in  Spring  et  al.  v.  The  Executors  of  Gray,  6  Peters, 
151. 


[*343]  *Larkin  v.  Wilburn,  in  Error. 

IN  an  action  of  replevin  by  Larkin  against  Wilburn, 
the  defendant  avowed  the  taking  of  the  goods  as  a  dis- 
tress for  rent,  due  to  him  from  the  plaintiff.  To  this 
avowry  the  plaintiff  pleaded  non  tenidt  and  riens  in  arrear. 
Issues  were  joined  upon  these  pleas.  There  was  a  ver- 
dict for  the  defendant  on  both  the  issues ;  the  jury  finding 
the  amount  of  rent  'in  arrear,  but  not  the  value  of  the 
goods  distrained.  The  Court  held,  that  the  common-law 
judgment  for  a  return  of  the  goods  to  the  defendant,  and 
for  his  costs  of  suit,  might  be  rendered  on  this  verdict ; 
but  that  there  could  be  no  judgment  in  his  favor  for  the 
arrears  of  rent  (1). 

(1)  If  the  verdict,  as  in  the  case  in  the  text,  be  against  the  plaintiff,  the 
jury  should  inquire  concerning  the  sum  of  the  arrears,  and  the  value  of  the 
distress;  and  the  dependant  will  thereupon  have  judgment  for  the  rent 
arrear,  if  the  distress  amount  to  the  value  of  it  with  costs.  If  the  value  of 
the  distress  be  less  than  the  arrears  of  rent,  the  judgment  is  for  the  value 
of  the  distress,  with  costs.  R.  C.  1831,  pp.  425,  426  :  17  Car.  2  c.  7  ;  3  Selw. 
N.  P.  379. 

(403) 


343-344    SUPREME  COURT  OF  INDIAXA. 


Allen  v.  Clark  and  Others. 


Allen  v.  Clark  and  Others. 

Decedent's  Estate — Settlement. — The  settlement  of  an  administrator's 
accounts  in  the  Probate  Court  is,  prima  facie,  correct ;  and  a  Court  of 
chancery  will  not  interfere  with  it,  except  in  clear  cases  of  mistake  or 
fraud  (a). 

ERROR  to  the  Franklin  Circuit  Court. 

Blackford,  J. — Bill  in  chancery  by  the  heirs  of  Clark 
against  Allen,  surviving  administrator  of  Clark.  The 
record  shows  that  Clark  died  in  1816 ;  that  letters  of  ad- 
ministration were  granted  to  Allen,  Bell,  and  H.  Clark; 
and  that  Allen  was  the  acting  and  surviving  administra- 
tor. It  is  shown  that  Allen,  in  1819,  made  a  settlement 
of  his  accounts  in  the  Probate  Court;  that  a  balance  was 
found  in  his  favor  of  318  dollars  and  90  cents;  and  that, 
in  1820,  he  received  that  sum  in  payment  from  H.  Clark, 
one  of  the  other  administrators.  The  bill  charges  mis- 
takes and  frauds  in  the  defendant's  accounts,  and 
[*344]  prays  a  ^decree  for  the  amount  in  liis  hands.  The 
answer  denies  all  fraud,  and  avers  the  account  as 
settled  in  the  Probate  Court  to  be  correct.  The  Circuit 
Court  tried  the  cause  upon  the  bill,  answer,  and  exhibits, 
and  rendered  a  decree  in  favor  of  the  complainants  for 
745  dollars  and  58  cents. 

It  is  contended  by  the  plaintifi'  in  error  that  the  Court 
of  chancery  has  no  jurisdiction  in  this  case.  In  this  he 
is  mistaken.  The  settlement  of  accounts  in  the  Probate 
Court  is  an  ex  ixnie  proceeding,  and  ought  not  to  preclude 
all  future  investigation  of  the  subject.  The  Probate 
Court,  however,  is  a  Court  of  record,  speciall}'  invested 
by  the  legislature  with  jurisdiction  in  these  cases,  and  its 
decisions  are  entitled  to  great  respect.  An  account  set- 
tled in  that  Court,  whilst  the  facts  are  of  recent  date,  is 
prima  fack  correct.  The  Court  of  chancer}'  can  only  in- 
terfere in  clear  cases  of  mistake  or  fraud  ;  and  the  com- 

(a)  Post  377 ;  12  Ind.  381  ;  26  Id.  124 ;  48  Id.  584  ;  51  Id.  96. 

(404) 


NOVEMBER  TERM,  1830.  344-345 

Markle  v.  Steele,  on  Appeal. 

plaiuant  must  be  held  to  strict  proof.  In  this  case,  there 
are  a  few  obvious  mistakes,  which  it  is  proper  to  correct ; 
but  we  are  of  opinion  that  the  principal  charges  in  the 
bill  are  not  sufficiently  supported.  The  result  of  our  in- 
vestigation of  the  cause  is,  that  the  decree  of  the  Circuit 
Court  should  have  been  in  favor  of  the  complainants  for 
the  sum  of  214  dollars,  together  with  the  costs  of  suit. 

Per  Curiam. — The  decree,  as  to  the  214  dollars  and  the 
costs,  is  affirmed ;  and  as  to  the  residue,  the  decree  is  re- 
versed. 

M' Kinney  and  Caswell,  for  the  plaintiffs 

Morris,  for  the  defendants. 


Markle  v.  Steele,  on  Appeal. 

Practice — Money  Had  and  Received. 

STEELE,  resident  in  another  state,  forwarded  to  Mar- 
kle, in  Indiana,  who  was  not  an  attorney  at  law,  a  note 
against  Hotchkiss  for  200  dollars,  to  be  collected.  Markle 
placed  the  note  in  the  hands  of  an  attorney  at  law  for 
collection.  The  attorney  collected  the  money,  and  left 
the  country  without  paying  it  over  to  Markle.  Held,  that 
Steele  could  not,  under  these  circumstances,  sustain  an 
action  for  money  had  and  received  against  Markle.  Held^ 
also,  that  if  Markle  could  be  made  liable  for  the  money 

in  any  form  of  action,  it  must  be  on  one  founded 
[*345]    on  his  ^having  acted  fraudulently  or  imprudently 

in  entrusting  the  note  to  the  attorney;  or  on  his 
having  failed  to  use  proper  means  to  obtain  the  money 
from  the  attorney  after  its  collection.  Vide  Beardsley  v. 
Root,  11  Johns.  R.  464;  Duncan  v.  Littell,  2  Bibb,  424; 
Lucket  V.  Bohannon,  3  Bibb,  378;  Duncan  v.  Skipwith,  2 
Camp.  68;  Nightingal  v.  Deiisme,  5  Burr.  2589. 

(405) 


345-346    SUPREME  COURT  OF  INDIANA. 


Elderkin  r.  Shultz. 


Elderkin  V.  Shultz. 

Note — Assignment — Parties. — The  assignee  of  a  debt — to  obtain  cer- 
tain securities  for  the  same  which  had  been  executed  by  the  debtor  to 
the  assignor's  attorney,  and  assigned  by  the  attorney  to  a  third  person — 
tiled  a  bill  in  chancery  against  the  attorney  and  his  assignee.  Held,  on 
demurrer,  that  the  plaintiff's  assignor  should  have  been  made  a  party, 

ERROR  to  the  Floyd  Circuit  Court. 

Scott,  J. — Jesse  Wilson  and  Samuel  Wilson,  in  the  year 
1819,  executed  to  one  Thomas  Hixson  an  obligation  for 
the  payment  of  1,193    dollars  and  93  cents,  payable  120 
days  from  date.     Thomas  Hixson  endorsed  and  delivered 
over  the  said  note  or  obligation  to  Nathan  Hixson.  In  the 
year  1821,  Nathan  Hixson  delivered  the  said  obligation 
to  Elderkin  and  Hagen,  attorneys  at  law,  for  collection. 
In  the  year  1824,  Elderkin  compounded  and  compromised 
with  Jesse  Wilson  for  the  said  debt,  and  took  from  the 
said  Jesse  four  several  promissory  notes,  for  the  sum  of 
366  dollars  and  31  cents  each,  payable  in  one,  two,  three, 
and  four  years  ;  which  notes  were  made  payable  to  Elder- 
kin, and  not  to  Hixson.     Jesse  Wilson,  at  the  same  time, 
executed  to  Elderkin  a  deed  of  mortgage  for  a  certain  tract 
of  land  in  Floyd  county,  as  a  further  security  for  the  pay- 
ment of  the  said  notes.     Elderkin  assigned  and  delivered 
•    over  the  said  notes  to  Caleb  Newman,  to  secure  the  pay- 
ment of  a  sum  of  money  advanced  to  him  by   said  New- 
man, and  retained  the  mortgage  in  his  own  possession.  In 
'    the  year  1826,  Nathan  Hixson,  for  a  valuable   considera- 
^  tion,  executed  to  Christian  Shultz,  the  defendant  here,  an 
instrument  of  writing,  purporting  to  be  an  assignment  and 
transfer,  to  the  said  Shultz,  of  all  his  right,  claim,  and  in- 
terest in  and  to  the  said  debt,  describing  the  nature  of  the 
claim  and  authorizing  Shultz  to  collect  it.     Shultz  called 
on  Elderkin,  and  made  a  demand  of  the  notes  and 
[*346]    mortgage  ;  but  Elderkin  *refnsed  to  deliver  them. 
Shultz  filed  his  bill  in. the  Floyd  Circuit  Court, 
(406) 


NOVEMBER  TERM,  1830.  346 

Elderkin  v.  Shultz. 

setting  out  the  foregoing  facts  and  praying  relief.  Elder- 
kin,  Hagen,  and  Newman  are  made  defendants ;  but  the 
bill  was  afterwards  dismissed  as  to  Hagen.  The  bill 
chareres  that  Elderkin  is  insolvent,  and  that  Newman  re- 
ceived the  notes  with  a  full  knowledge  of  Hixson's  right. 
Newman  appeared  and  answered  the  bill.  Elderkin  de- 
murred on  the  ground  that  Hixson  was  not  made  a  party. 
The  Court  decreed  that  the  defendants,  Elderkin  and 
Newman,  should,  within  90  days,  deliver  the  aforesaid 
notes  and  mortgage  to  the  complainant  or  his  attorney, 
and  pay  costs,  &c.  Elderkin  has  brought  this  writ  of  error 
to  be  relieved  from  the  operation  of  that  decree. 

It  is  the  constant  aim  of  a  Court  of  equity  to  prevent 
litigation,  and  so  to  settle  the  rights  of  all  parties,  as  to 
make  the  performance  of  their  decree  perfectly  safe  to 
those  who  are  compelled  to  obey  it.  Mitf.  PI.  144.  On 
this  principle  it  was  decided,  in  a  suit  brought  by  the  as- 
signees of  a  judgment,  that  they  could  not  succeed,  be- 
cause they  had  not  brought  the  assignors  before  the 
Court.  Cathcart  v.  Leiois,  1  Ves.  jun.  4G3.  Also,  in  the 
case  of  Knollys  v.  Alcock,  7  Ves.  563,  the  Lord  Chancellor 
said,  if  a  question  of  worth  and  value  is  to  be  agitated^ 
the  Court  will  not  decide  upon  it,  without  every  one  being 
a  party  whose  rights  can  be  affected  by  the  decision.  In 
this  case,  Hixson  had,  by  the  complainant's  own  showing, 
an  interest  in  the  matters  charged  in  the  bill.  Had  the 
defendants  been  compelled  to  perform  the  decree,  they 
might  nevertheless  have  been  afterwards  called  upon  to 
answer  the  complaint  of  Hixson,  whose  rights  could  not 
be  affected  by  a  decision  where  he  was  not  a  party.  See, 
also,  2  Madd.  Ch.  142,  143.  The  demurrer  should  have 
been  sustained. 

Per  Curiam. — The  decree  is  reversed  with  costs.  Cause 
remanded,  &c. 

Hoirk  and  JVclson,  for  the  plaintiff. 

Farnham,  for  the  defendant. 


(407) 


346-347    SUPREME  COURT  OF  INDIANA. 


Eicks  V.  Doe,  on  the  Demise  of  Wright. 


Ricks  v.  Doe,  on  the  Demise  of  Wright. 

Conveyance — Notice — Priority  of  Title. — A  subsequent  conveyance 
of   real  estate,  although  first  recorded,  will  not  prevail   against 

[*347]  '-a  prior  one  which  is  not  recorded  until  after  the  expiration  of 
the  time  prescribed  by  law,  if  the  subsequent  purchaser  had 
actual  notice  of  the  prior  conveyance  («). 

ERROR  to  the  Perry  Circuit  Court. 

HoLMAN,  J. — Ejectment  for  a  lot  of  land  in  the  town  of 
Rome.  Wright,  the  plaintiiF's  lessor,  claimed  title  to  the 
premises  by  virtue  of  a  deed  of  conveyance,  executed  to 
him  by  Crume  on  the  10th  of  June,  1829,  and  acknowU 
edged  and  recorded  on  the  same  day.  After  the  plaintiff 
had  exhibited  his  title,  the  defendant,  who  claimed  as 
landlord  of  the  premises,  offered  in  evidence  a  deed  exe- 
cuted to  him  by  the  said  Crume,  for  the  same  lot,  on  the 
18th  of  March,  1822,  and  acknowledged  on  the  same  day, 
but  not  recorded  until  the  20th  of  August,  1829.  He  also 
offered  Lamb,  the  recorder  of  the  county,  who  had  taken 
the  acknowledgment  of  both  deeds,  as  a  witness  to  prove 
that  the  lessor  of  the  plaintiff,  before  he  purchased  the 
lot,  had  notice  of  the  existence  of  the  defendant's  deed. 
This  deed  and  parol  evidence  were  rejected  by  the  Cir- 
cuit Court,  and  the  plaintiff  obtained  a  verdict  and  judg- 
ment. 

This  case  turns  upon  the  question  whether  a  subse- 
quent deed,  though  first  recorded,  will  hold  the  legal 
estate  against  a  prior  deed  of  which  the  subsequent  pur- 
chaser had  notice,  when  the  prior  deed  was  not  recorded 
Avithin  twelve  months  after  its  execution?  The  act  of 
assembly  of  1818,  pointing  out  the  mode  of  conveying 
real  estate,  which  was  in  force  when  the  defendant's 
<leed  was  executed,  and  which,  being  re-enacted  iii  1824, 
still  continues  to  be  the  law,  declares,  that  unless  a  deed 
is  recorded  within  twelve  months  after  it  is  executed,  it 

{a)  See  17  Ind.  542. 

(408)   ■ 


NOVEMBER  TERM,  1830.  347-348 


Eicks  V.  Doe,  on  the  Demise  of  Wright. 


shall  be  adjudged  fraudulent  and  void  against  a  subse- 
quent purchaser  for  a  valuable  consideration,  unless  such 
deed  be  recorded  before  the  recording  of  the  deed  under 
which  the  subsequent  purchaser  claims.  Stat.  1818,  p. 
207;  R.C.  1824,  p.  333(1). 

Under  the  registry  acts  in  England,  and  the  regula- 
tions  respecting  the  recording  of  deeds  in  most  ot  the 
United  States,  it  never  has  been  questioned  but  that  a 
subsequent  purchaser,  with  notice  of  a  prior  deed  though 
not  recorded  is  chargeable  with  fraud  in  a  Court  of  equity, 
although  his  deed  is  regularly  recorded.     He  is  consid- 
ered  as    a    mala  fide   purchaser,  uniting  with    the  ven- 
dor to  defraud  the  prior  vendee;  and  neither  justice  nor 
good  conscience  will  permit  him  to  retain  what 
r*348]    he  *knew,  at  the  time  of  his  purchase,  was  the 
property  of  another.     Wyatt  v.  BarweU,  19  Ves. 
435 ;  Le  Neve  v.  Le  Neve,  3  Atk.  646 ;  Gillespie  v.  Moon,  2 
Johns.  C.  R.  585.     To  give  our  act  of  assembly  the  most 
rigid  construction,  and  declare  that  the  deed  of  Ricks 
was  absolutely  void  as  to  Wright,  notwithstanding  his 
notice  of  the  prior  deed,  still,  if  the  fact  of  notice  were 
clearly  established,  it  would  vitiate  this  title,  and  a  Court 
of  chancery  would  consider   him    as  holding  the  legal 
estate  in  trust  for  Ricks.     This  would  in  fact  have  been 
the  case  if  Ricks  had  held  but  a  title-bond  for  the  lot; 
and  his  taking  a  deed  can  not  render  his  claim  less  avail- 
able in  equity. 

There  is  not,  however,  the  same  uniformity  of  decision 
as  to  the  right  of  a  Court  of  law  to  take  cognizance  of 
the  fraud.  It  is  a  general  rule  that  fraud  is  cognizable 
in  Courts  of  law  as  well  as  in  Courts  of  equity.  The 
same  rules  of  construing  statutes  prevail  in  both ;  and 
each  is  bound  to  give  such  a  construction  as  will  carry 
the  evident  intention  of  the  legislature  into  effect.  Hence 
the  conclusion  is  fairly  doducible  that  a  Court  of  law  is 
not  bound  to  give  efficacy  to  a  claim  founded  on  a  deed 
evidently  vitiated  by  fraud,  whether  direct  or  construct- 

(409) 


348-349    SUPREME  COURT  OF  K^DIAXA. 

Elder  v.  Lasswell  and  Others. 

ive.  The  case  of  Jackson  v.  Bargott,  10  Johns.  R.  457,  is 
directly  in  point,  so  far  as  the  principle  is  concerned,  as 
the  act  of  assembly  of  New  York  is  the  same  as  ours. 
And  the  following  language  used  by  Ch.  J.  Kent  in  that 
case  is  not  inapplicable  to  this,  on  the  supposition  that 
the  defendant  substantiates  the  fact  of  notice:  "When 
the  statute  says  that  every  deed,  not  recorded,  shall  be 
adjudged  fraudulent  and  void  against  a  subsequent  pur- 
chaser for  a  valuable  consideration,  whose  deed  shall  be 
recorded,  it  undoubtedly  meant  a  subsequent  purchaser 
in  good  faith,  and  who  did  not  purchase  with  a  fraudulent 
intent.  A  subsequent  purchaser,  mala  fide,  is  not  within 
the  purview  of  the  act  and  not  intended  to  be  protected; 
for  the  statute  never  meant  to  give  sanction  to  fraud,  or 
to  render  a  fraudulent  act  legal." 

We  are  therefore  of  opinion  that  the  evidence  was  im- 
properly rejected;  that  the  defendant  had  a  right  to  show 
that  the  plaintiff's  lessor  had  notice  of  his  deed  before  he 
purchased;  that  the  purchase  was  fraudulent;  and  that 
no  estate  was  derived  by  it  which  is  available  either  in 

law  or  equity. 
[*349]      ^Per  Curiam. — The  judgment  is  reversed,  and  the 
verdict  set  aside,  with  costs.  Cause  remanded,  &c. 

Hall  and  Dewey,  for  the  plaintiff. 

Battell,  for  the  defendant. 

(1)  Accord.    K.  C.  1831,  p.  270. 


Elder  v.  Lassavell  and  Others. 

Set-off— Parties.— A  debt  due  by  A.  and  B.  to  C.  can  not  be  set  off,  either 
at  law  or  in  equity,  against  a  debt  due  by  C.  to  A.  alone  (a). 

Same — Practice. — There  is  no  difference,  on  the  subject  of  set-off,  between 
Courts  of  law  and  equity  ;  the  rule  is  the  same  in  both  Courts. 

(a)  See  58  Ind.  52;  55  Id.  216;  53  Id.  221  ;  10  Id.  333;  53  Id.  216;  14 

Id.  20.  '  .  , 

(410) 


NOVEMBER  TERM,  1830.  349-350 


Elder  v.  Lasswell  and  Others. 


ERROR  to  the  Perry  Circuit  Court. 
Blackford,  J. — Bill  in  chancery  by  Elder  against  Lass- 
well,  Comstock,  Chenault,  and  Burke.     The  substance  of 
the  bill   is,  that  the  complainant  and  one  Arnold  Elder, 
since  deceased,  executed  their  note  to  Lasswell  for  550 
bushels  of  corn  ;  that  in  1826,  before  this  note   became 
due,  they  obtained  from  Chenault  and  Burke,  by  assign- 
ment, a  sealed  note,  executed  by  Lasswell  and  one  Ephraim 
Comstock  for   1,020  dollars  and  82  cents  due  on  the  1st 
of  March,  1820 ;  that  Lasswell  refused  to  permit  this  note 
to  be  set  oil"  against  the  one  he  held  for  the  corn,  and  has 
obtained   a  judgment   against   the    complainant   far    88 
dollars,  in  a  suit  at  law  on  the  last-mentioned  note.     The 
bill  further  states  that  both  Lasswell  and  Comstock  are 
insolvent;  and  that  their  joint  note  could  not  be  set  oft'by 
the  complainant,  in  the  action  at  law  against  him  on  the 
note  given  to  Lasswell  alone.     The  prayer  of  the  bill  i?, 
that  the  judgment  at  law  be  enjoined,  and  the  set-ott*  al- 
lowed.    A  written  objection  in  the  following  words  was 
filed   to  the  bill,  viz  :      "  The  defendant,  Lasswell,  now 
moves  the  Court  here,  that  the  above  cause  be  dismissed 
for  want  of  apparent  equity  ;  and  that  the  said  defendant 
be  allowed  his  costs  expended  in  that  behalf— Crawford, 
Sol."     The   Circuit   Court  dissolved  the  injunction    and 
dismissed  the  bill,  with  costs  and  damages. 

The  complainant's  object  is  to  set  off  his  joint  note 
on  Lasswell  and  Comstock,  against  Lasswell's 
[*350]  judgment  on  a  note  *executedto  him  alone  by  the 
complainant.  It  is  admitted  that  the  set-oft"  is  not 
admissible  at  law ;  but  it  is  contended  that  it  may  be  re- 
ceived in  equity.  This  distinction,  relied  on  by  the  com- 
plainant, between  Courts  of  law  and  equity,  on  the  subject 
of  set-oft,  does  not  exist.  The  rule  is  the  same  in  both 
Courts.  This  precise  point  is  settled  in  the  case  of  Bale 
and  others  v.  Cooke,  4  Johns.  C.  R.  11.  The  bill  can  not  be 
sustained. 

There  is  an  informality  in  the  manner  in  which  the 

(411) 


350  SUPREME  COURT  OF  INDIAJSTA. 

Merriman  v.  Maple. 

bill  was  objected  to.  The  objection,  however,  was  in 
writing  and  makes  a  part  of  the  record.  It  is  in  substance 
a  demurrer. 

The  decree  of  the  Circuit  Court  against  the  complain- 
ant is  correct,  and  fiiust  be  affirmed. 

Per  Curiam. — The  decree  is  affirmed.  To  be  certified, 
&c.  (1). 

Dewey  and  Hall,  for  the  plaintiff 

Crawford,  for  the  defendants. 

(1)  A  re-hearing  was  granted  in  this  cause ;  but  it  was  not  submitted 
again  to  the  Court.  It  was  dismissed  by  agreement  of  the  parties.  The 
set-off  was  inadmissible.    M^ Kinney  v.  Belloios,  May  term,  1832. 


Merriman  v.  Maple. 


Indoksement — Release  of  Maker. — The  assignee  of  a  promissory  note 
assigned  before  it  was  due,  delayed  thirty  days  after  it  became  due  be- 
fore he  sued  the  maker.  Held,  that  the  indorser  was  not  liable  in  such 
a  case,  for  the  maker's  default,  unless  the  indorsee  could  show  that  an 
earlier  proceeding  was  impracticable,  or  would  have  been  unavail- 
ing («). 

ERROR  to  the  Carroll  Circuit  Court. 

Scott,  J. — Assumpsit  by  the  assignee  of  a  sealed  note 
against  the  assignor.  Plea,  non-assumpsit;  issue;  and 
judgment  for  the  plaintift'.  Two  other  pleas  were  reject- 
ed on  demurrer.  We  learn  from  the  record,  that  the  note 
was  made  by  Skinner,  payable  to  Merriman  twelve  months 
after  date,  and  assigned  by  Merriman  to  Maple  before  it 
became  due.  The  note  became  due  on  the  eighth  of 
August,  1821.  On  the  tenth  of  September  following,- 
Maple  sued  out  of  the  office  of  the  Franklin  Circuit  Court 
a  writ  of  capias  ad  respondendum  against  Skinner,  re- 
turned on  the  first  Monday  of  October,  which  writ 
was  returned    non   est  inrcntus.      On  the  sixth    of  Octo- 

(«)  40  Ind.  461  ;  53  /(/.  288. 

(412) 


NOVEMBER  TERM,  1830.  351 

Hagaman  v.  Stafford. 

[*351]  ber,  an  alias  capias  ^issued  returnable  on  the  first 
Monday  of  March,  1822,  which  was  returned  exe- 
cuted, and  judgment  was  rendered  at  the  term  for  the 
plaintiff.  Several  executions  were  issued  on  the  judgment 
and  returned  nulla  bona.  Maple,  the  assignee,  then 
brought  this  suit  and  obtained  judgment. 

The  complaint  is,  that  due  diligence  was  not  used  by 
Maple  to  obtain  the  money  from  Skinner.  The  liability 
of  the  assignor  depends  on  the  fact  that  the  assignee, 
after  having  used  due  diligence,  has  failed  to  obtain  the 
money  of  the  maker  of  the  note.  Had  the  assignee,  not- 
withstanding the  delay,  succeeded  in  bringing  Skinner 
into  Court  at  the  first  term  after  the  note  became  due,  the 
assignor  would  have  had  no  ground  of  complaint;  but  as 
the  assignor  had  parted  with  the  note,  and  had  no  more 
control  over  it,  he  had  a  right  to  require  evidence  that 
the  assignee  had  commenced  suit  in  due  time,  and  had 
used  all  the  means  in  his  power  to  obtain  judgment  at 
the  first  term;  or  that  he  should  show  some  reason  why 
an  earlier  proceeding  was  impracticable,  or  if  practicable, 
that  it  would  have  been  unavailing.  A  delay  of  upwards 
of  thirty  days,  without  any  reason  to  justify  or  excuse  it, 
is  not,  in  our  opinion,  consistent  with  that  due  diligence 
which  the  law  requires  in  such  cases.  If  a  man  choose 
to  sleep  on  his  rights,  he  must  do  so  at  his  own  risk  and 
not  at  the  hazard  of  his  neighbor, 

Pe7'  Curiam. — The  judgment  is  reversed  with  costs. 

Wiek,  for  the  plaintifi'. 

Fletcher  and  31errill,  for  the  defendant. 


Hagaman  v.  Stafford. 


Evidence — Authenticity  of  Affidavit. — A  paper,  purporting  to  be  an 
affidavit  made  before  a  justice  of  the  peace  in  another  county,  was  offer- 
ed in  evidence.     Held,  that  there  must  be  proof  of  its  authenticity,  in 

(413) 


351-352   SUPREME  COURT  OF  INDIANA. 

Hagaman  v.  Stafford . 

order  to  authorize  its  admission ;  but  that  it  might  be  proved  by  parol 
evidence  (o). 

ERROR  to  the  Owen  Circuit  Court. 

HoLMAN,  J. — Action  on  the  case  by  a  father  for  the  se- 
duction of  his  daughter,  whereby  he  lost  her  service. 
Plea,  not  guilty.  On  the  trial  the  daughter  was  intro- 
duced as  a  witness  on  behalf  of  the  plaintiff,  and 
["^^352]  stated  in  her  evidence  that  the  *child  she  had 
borne  was  begotten  by  the  defendant  at  her  fatlier's 
in  Greene  county.  In  order  to  discredit  her  testimony, 
the  defendant  offered  in  evidence  a  paper,  purporting  to 
be  an  affidavit  made  by  the  witness  before  a  justice  of  the 
peace  of  Greene  county  in  a  case  of  bastardy,  in  w^liich  it 
is  said  that  she  then  swore  that  the  defendant  was  the 
father  of  the  child,  and  that  it  was  conceived  at  Peter 
Hagaman's  in  Greene  county.  The  plaintiff  objected  to 
the  reading  of  this  affidavit,  because  it  was  not  authenti- 
cated by  the  certificate  and  seal  of  the  clerk;  but  the  Cir- 
cuit Court,  on  receiving  proof  that  the  man  before  whom 
the  oath  appeared  to  be  sworn,  was,  at  the  time  of  mak- 
ing the  affidavit,  an  acting  justice  of  the  peace  of  Greene 
county,  permitted  it  to  be  read  in  evidence  without  any 
proof,  says  a  bill  of  exceptions,  of  the  handwriting  of  the 
justice,  or  that  he  ever  made  the  certificate.  The  defend- 
ant obtained  a  verdict.  The  plaintiff  moved  for  a  new 
trial.  The  Circuit  Court  overruled  the  motion,  and  gave 
judgment  for  the  defendant. 

The  affidavit  should  not  have  been  read  without  proof 
of  its  authenticity.  It  purports  to  be  a  part  of  a  legal 
proceeding,  before  the  justice  of  the  peace,  between  the 
state  and  the  present  defendant;  and  being  detached  from 
the  case  is  not  entitled  to  the  same  credit  as  if  the  whole 
proceedings  had  been  certified.  Again,  it  purports  to  be 
the  original  affidavit,  being  nowhere  spoken  of  in  the 
record  as  a  copy;  and,  being  a  document  that  should  not 

(a)  5Blkf.  390;  49  Ind.  341. 

(414) 


NOVEMBER  TERM,  1830.  352-353 


Moore,  Administrator,  i-.  Martindale,  Administrator. 

be  thus  removed  from  the  office  of  the  justice,  its  exhib- 
ition in  this  case  for  a  purpose  entirely  foreign  to  that  for 
which  it  was  originally  intended,  and  in  a  county  difier- 
ent  from  that  in  which  the  justice  resided,  is  calculated 
to  excite  suspicion.  The  party  introducing  it  should, 
therefore,  be  held  to  the  strictest  proof  of  its  authenticity ; 
which,  however,  may  be  furnished  by  oral  testimony. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside  with  costs.     Cause  remanded,  &c.  (1). 

JVaylor,  for  the  plaintiff. 

Merrill,  for  the  defendant. 

(1)  A  re-hearing  was  granted  in  this  case  ;  but  the  same  judgment  in  it. 
as  above,  was  afterwards  rendered. 


[*353]    *MooRE,  Administrator,  v.  Martindale,  Adminis- 
trator. 

Practice — Default — Administratok. — If  an  administrator  suffer  judg- 
ment by  default,  he  can  not  afterwards,  by  the  common  law,  in  an  action 
against  him  suggesting  a  devastavit,  plead  plene  administravit. 

The  statute  of  1822,  authorizing,  under  those  circumstances,  the  plea  of 
plene  administravit,  does  not  affect  cases  in  which  the  judgment  by  de- 
fault was  suffered  previously  to  the  statute  (a). 

ERROR  to  the  Wayne  Circuit  Court. 

HoLMAN,  J. — Declaration  in  debt,  setting  forth  that  on 
the  16th  of  July,  1821,  Mordecai  Mendenhall,  recovered 
a  judgment  against  William  Young  and  Moses  Martin- 
dale, administrators  of  the  estate  of  Jesse  Young,  de- 
ceased, by  default,  for  want  of  a  plea ;  to  be  levied  of  the 
goods  and  chattels,  lands  and  tenements  of  the  deceased, 
in  their  hands  to  be  administered;  that  Mendenhall  died, 
and  that  administration  of  his  estate  was  2:ranted  to  the 
plaintiff;  that  he  had  the  judgment  revived  in  his  own 
name  as  administrator,  at  the  August  term  of  the  Circuit 

(a)  3  Blkf.  275. 

(415) 


353-354   SUPREME  COURT  OF  INDIANA. 

Moore,  Administrator,  v.  Martindale,  Administrator. 

Court,  1829,  and  execution  awarded ;  that  an  execution 
issued  and  was  returned  nulla  bona.  He  avers  that,  at 
the  time  the  judgment  was  obtained,  and  at  the  time  it 
was  revived  and  execution  awarded,  there  were  assets  in 
the  hands  of  the  defendants  to  the  value  of  the  judgment, 
which  were  afterwards  wasted  by  the  defendants.  Young 
was  not  found.  Martindale  appeared  and  pleaded,  that 
at  the  time  he  had  notice  of  the  debt,  to  wit,  on  the  10th 
of  January,  1821,  he  had  fully  administered  all  the  assets 
that  came  into  his  hands;  and  that  he  has  received  noth- 
ing sincCc  Wherefore,  he  says  he  is  not  guilty  of  the 
waste  charged  in  the  declaration.  To  this  plea  the  plain- 
tiff demurred  specially.  The  Circuit  Court  overruled  the 
demurrer  and  gave  judgment  for  the  defendant. 

It  is  admitted  that  if  Mendenhall  had  followed  up  his 
judgment  by  execution,  and  had  not  found  assets  to  sat- 
isfy it^  he  would  have  had,  as  the  law  then  stood,  a  right 
of  action  against  the  defendant,  on  the  suggestion  of  a 
devastavit;  and  that  the  defendant  could  not  have  been 
heard  in  any  plea  denying  what,  in  legal  intendment, 
was  admitted  by  default,  viz.  that  he  had  assets  to  dis- 
charge the  judgment.     The  facts  pleaded  in  the  present 

action  would  not,  under  any  form,  have  consti- 
[*354]    tuted  *a  defence.     But  it  is  contended,  that  by 

the  act  of  assembly,  approved  January  the  2d, 
1822,  the  law  has  been  changed  so  as  to  remove  the  de- 
fendant's liability  so  far  as  to  permit  him  to  show  he  had 
no  assets.  This  act  provides  that  no  mispleading,  or  lack 
of  pleading,  shall  hereafter  render  any  executor  or  admin- 
istrator liable  to  pay  any  debt  of  the  deceased,  damages 
or  costs,  beyond  the  actual  amount  of  assets,  which  shall 
or  may  come  into  his  hands.  Stat.  1822,  p.  141.  With- 
out inquiring  into  the  competency  of  the  legislature  to 
pass  an  act  impairing  the  rights  of  Mendenhall  or  his 
representative,  or  diminishing  the  liability  of  the  defend- 
ant, we  are  of  opinion  that  they  have  not  attempted  to 
interfere  in  the  case,  but  have  left  it  just  where  it  was. 

(41G) 


NOVEMBER  TERM,  1830.  354-355 

Doe,  on  the  Demise  of  Knapp  aud  Wife  v.  Patterson  and  Others,  in  Error. 

The  act  of  assembly  is  prospective  as  to  the  mispleading 
or  lack  of  pleading,  as  well  as  to  the  administrator's  dis- 
charge from  liability.  By  a  fair  construction  it  says  that 
nothing  that  takes  place  hereafter,  as  to  mispleading  or 
lack  of  pleading,  shall  render  the  administrator  liable  be- 
yond the  assets;  and  says  nothing  about  previous  mis- 
pleading or  lack  of  pleading,  but  leaves  them  with  their 
consequences,  under  the  operation  of  the  law  that  pre- 
vailed at  the  time  they  took  place.  The  law  on  this  sub- 
ject that  was  in  force  when  the  original  judgment  was 
entered,  though  its  policy  has  been  often  questioned,  has 
been  too  long  and  too  well  settled  to  admit  of  contro- 
versy. The  judgment  by  default  so  fixed  on  the  admin- 
istrator the  presumption  of  assets,  to  the  amount  of  the 
judgment,  that,  in  a  subsequent  action  for  a  devastavit, 
he  is  estopped  from  denying  that  fact.  This  is  the  law 
that  governs  the  case :  of  course  the  defendant's  plea  was 
inadmissible,  and  the  demurrer  should  have  been  sus- 
tained. 

Pel'  Curiam. — The  judgment  is  reversed  with  costs  (1). 

Smith,  for  the  plaintifi". 

■Rariden,  for  the  defendant. 

(1)  A  re-hearing  was  granted  in  this  case  ;  but  the  same  judgment  in  it. 
as  above,  was  afterwards  rendered.  Vide  R.  C.  1831,  p.  169.  Martindale  v. 
Moore,  Nov.  term,  1833. 


[*355]    *DoE,  on  the  Demise  of  Knapp  and  Wife,  v.  Pat- 

TisoN  and  Others,  in  Error. 

HELD,  that,  by  the  statute  .law  of  this  state,  a  will,  de- 
vising real  estate  must  be  in  writing,  signed  by  the  tes- 
tator, and  attested  by  two  credible  witnesses  in  presence 
of  the  testator;  and  that  it  may  in  the  same  manner  be 
revoked.  Held,  also,  that  a  will  in  such  a  case,  as  well  as 
a  revocation,  is  valid  without  being  sealed  (1). 
Vol.  II.— 27  (417) 


S55-356     SUPREME  COURT  OF  INDIANA. 


Eawley  v.  The  Board  of  Commissioners  of  Vigo  County, 

(1)  A  re-hearing  was  granted  in  this  case;  but  the  same  judgment  in  it, 
as  above,  was  afterwards  rendered.  The  statute  is  now  as  follows  : — "All 
devises  and  bequests  of  any  lands  or  tenements,  devisable  by  force  of  this 
act  or  any  other  law  of  this  state,  shall  be  in  writing,  and  signed  by  the 
party  so  devising  the  same,  or  by  some  other  person  in  his  presence  and  by 
his  express  directions,  and  shall  be  attested  and  subscribed,  in  the  presence 
of  the  said  devisor,  by  two  or  more  competent  witnesses,  or  else  they  shall 
be  utterly  void  and  of  no  effect."  R.  C.  1831,  p.  272.  Such  devises  can 
only  be  revoked  by  the  burning,  cancelling,  tearing,  or  obliterating  of  the 
same  by  the  testator  himself,  or  in  his  presence  and  by  his  direction  and 
consent ;  or  by  some  other  will  or  codicil  in  writing,  or  other  writing  of  the 
devisor,  signed  in  the  presence  of  two  or  more  competant  witnesses  declar- 
ing the  same.  lb.  The  subsequent  birth  of  a  child,  if  there  be  no  provis- 
ion in  the  will  for  such  a  contingency,  operates  as  a  revocation  of  the  will, 
lb.  p,  274. 


Rawley  V.  The  Board  of  Commissioners  of  Vigo  County. 

Fees — Criminal  Actions. — Neither  the  state,  nor  a  county,  is  bound  by 
law  to  pay  the  fees  and  charges  of  the  officers,  in  cases  of  prosecutions  on 
behalf  of  the  state,  in  which  the  prosecution  fails  (a). 

ERROR  to  the  Vigo  Circuit  Court. 

Blackford,  J. — The  following  statements  of  facts  in 
this  cause  was  submitted  to  the  Court:  ^^Alpheus  Rawley 
V.  The  Board  of  Commissioners  of  the  County  of  Vigo.  Ac- 
tion of  assumpsit.  Damages,  55  dollars.  The  following 
is  a  statement  of  an  agreed  case  for  the  decision  of  the 
Vigo  Circuit  Court,  Indiana,  between  Alpheus  Rawley, 
constable  for  Otter  creek  township,  in  said  county,  and 
the  board  of  commissioners  of  said  county.     Rawley  has 

performed  services  as  constable,  in  state  cases  de- 
[*356]    cided  against  the  county,  to  the  amount  of  55  *dol- 

lars,  for  which  he  claims  an  allowance  from  the 
said  board  of  county  commissioners;  a  part  of  which 
claim  is  embraced  in  his  account  filed,  and  which  is  to  be 
made  a  part  of  the  record.  The  only  question  submitted 
is,  whether  the  county  is  liable  to  pay  for  such  services. 
— A.  Kinney,  for  plaintiff. — J.  Farrington,  for  defendant." 

(a)  21  Ind.  32. 

(418) 


KOVEMBER  TERM,  18b0.  356 


Kipper  and  Others  v.  Glancey  and  Another, 


—The  Circuit  Court,  in  this  case,  decided  in  favor  of  the 
defendant. 

We  have  no  doubt  in  this  case.  Neither  the  state,  nor 
a  county,  is  bound  by  law  to  pay  the  fees  and  charges  of 
the  officers,  in  cases  of  prosecutions  on  behalf  of  the  state, 
in  which  the  prosecution  fails.  There  have  been  frequent 
cases  of  the  kind  in  this  Court;  and  we  have  uniformly 
refused  to  give  costs  against  the  state.  It  is  settled  in  the 
Supreme  Court  of  the  United  States  that  the  United  States 
never  pay  costs  in  any  suit.  United  States  v.  Barker,  2 
Wheat.  395.  In  the  present  case,  the  county  can  not  be 
liable  for  the  fees  and  charges  stated,  without  an  express 
statute  on  the  subject.  It  is  admitted  that  there  is  no 
such  statute.     The  judgment  must  be  affirmed. 

Per  a^rmm.— The  judgment  is  affirmed  with  costs. 

Kinney,  for  the  plaintiff. 
Farrington,  for  the  defendant. 


Kipper  and  Others  v.  Glancey  and  Another. 

Equity— Remedy  of  Creditors.— If  a  person,  indebted  to  several  others, 
absent  himself  from  the  state,  and  leave  real  estate  to  which  he  is  entitled 
in  equity,  but  no  property  subject  to  legal  process,  the  creditors  may  unite 
in  a  bill  in  chancery  to  have  their  claims  liquidated,  and  to  make  the 
property  liable  for  the  amount  (a). 

Same— Practice.— The  Court,  on  overruling  a  demurrer  to  a  bill  in  chan- 
cery, should  give  the  defendant  a  reasonable  time  to  make  and  file  his 
answer. 

ERROR  to  the  Shelby  Circuit  Court. 

Blackford,  J.— This  was  a  bill  in  chancery,  filed  by 
Joseph  Glancey  and  John  Kinsley,  in  the  Shelby  Circuit 
Court,  against  James  P.  Kipper,  John  Kipper,  Samuel 
Kipper,  and  Kathan  Bulkley.  Each  of  the  complainants 
set    forth    his    separate    demand,    founded    on    contract, 

(a)  See48Ind.  75;  7  Id.  622. 

'  (419) 


356-357    SUPREME  COURT  OF  INDIANA. 

Kipper  and  Others  v.  Glancey  and  Another. 

against  James  P.  Kipper.     The  bill  charges  that,  in  1828, 
after  the  debts  were  contracted,  James  P.  Kipper  privately 
removed,    with   his   personal    property,  to    some 
[*3o7]    place  *out  of  the  state  unknown  to  the  complain- 
ants.    It  states  that,  in  1824,  this  defendant  paid 
100  dollars  for  a  tract  of  land  in  Shelby  county,  took  the 
title  in  the  name  of  one  Stilwell,  without  his  knowledge, 
and,  in  1826,  caused  Stilwell  to  convey  the  land,  without 
consideration,  to  Samuel  Kipper.  The  bill  further  charges, 
that  James  P.  Kipper  purchased  alot^in  Shelby ville,  made 
valuable  improvements  thereon,  and  afterwards,  in  1825, 
caused  the   vendor  to  convey  the  same  to  John  Kipper 
without  the  latter's  knowledge.     It   charges,  also,  that 
James  P.  Kipper,  in  1826,  paid  100  dollars  for  a  tract  of 
land  in  the  said  county,  and  took  the  title  in  the  name  of 
John  Kipper  without  his  knowledge.     The  bill  alleges, 
that  James  P.  Kipper  has  the  beneficial  interest  in  this 
real  estate,  and  that,  to  defraud  his  creditors,  he  caused 
the  legal  title  to  the  property  to  be  vested  in  Samuel  and 
John  Kipper,  who  ai'e  his  trustees.     The  defendant,  Bulk- 
ley,  is  charged  to  be  the  agent  of  James  P.  Kipper,  and  to 
have  money  in  his  hands  payable  to  his  principal,  arising 
from  the  rents  and  profits  of  the  trust-property.    Fraud  is 
charged  against  all  the  defendants.     The  bill  prays  that 
the  real  estate  described  be  sold  to  satisfy  the  complain- 
ants; or  that  Bulkley  be  decreed  to  pay  the  debts  out  of 
the  funds  in  his  hands.     This  bill  was  demurred  to.  The 
Circuit  Court  overruled  the  demurrer,  and  gave  the  de- 
fendants leave  to  answer   further,  provided  it  was  done 
instanter.  The  defendants  applied  for  time  to  make  and  file 
their  answer;  but  the  Court  refused   to  give  them    any 
time  whatever  to  do  so,  withoutthe  complainants'  consent. 
The  defendants  not  answering  instanter,  the  bill  was  taken 
pro  confesso,  and  a  final  decree  rendered  for  the  complain- 
ants. 

The  objection  made  to  this  bill  is,  that  the  complain- 
ants are  not  judgment-creditors.  It  is  the  general  doctrine, 

(420) 


NOVEMBER  TERM,  1830.  357-358 

Kipper  and  Others  v.  Glancey  and  Another. 

certainly,  that  to  reach  the  equitable  interest  of  the 
debtor  in  real  estate,  by  a  suit  in  chancery,  the  creditor 
should  first  obtain  a  judgment  at  law;  and  to  obtain  as- 
sistance in  equity  as  to  personal  property,  both  a  judg- 
ment and  an  execution  must  be  shown.  Brinkerhoff  v. 
Broirn,  4  Johns.  Ch.  R.  671.  One  exception  to  this  rule 
is,  where  the  debtor  is  deceased.  Thompson  et  at.  v. 
Brown  et  al,  4  Johns.  Ch.  R.  619.  Of  this  class,  was  the 
case  of  Sweeney  et  al.  v.  Ferguson,  May  term,  1828,  cited 
by  the  defendants  in  error  (1).     Another  exception  to  the 

rule  is,  where  the  debtor  has  absented  himself 
[*358]    *from  the  state.     This  is  so  decided  in  the  case  of 

Scott  V.  3I'MUlen,  1  Litt.  302.  In  this  latter  case, 
it  is  true,  there  was  only  one  complainant.  It  seems  to 
us,  however,  that  the  practice  should  not  be  confined  to 
the  proceeding  by  a  single  creditor ;  but  that  several  may 
unite  in  the  same  bill,  under  the  circumstances  of  the 
present  case.  This  is  permitted  where  judgments  are 
previously  obtained ;  Brinkerhoff  et  al.  v.  Brown  et  al.,  6 
Johns.  Ch.  R.  139;  or  where  the  debtor  is  deceased. 
Thompson  et  al.  v.  Brown  et  al.,  4  Johns.  Ch.  R.  619. 
Where  the  debtor  has  absconded,  the  practice  should  be 
the  same  as  in  the  cases  to  which  we  have  referred.  By 
absconding  from  the  state,  the  debtor  prevents  the  pro- 
ceeding against  him  at  law,  and  his  creditors  should  be 
permitted  to  apply  to  a  Court  of  chancery,  as  where 
judgments  have  been  previously  obtained,  or  the  debtor 
is  deceased.  If  the  absconding  debtor  leaves  property 
subject  to  legal  process,  the  creditors  may  have  their  de- 
mands liquidated,  and  may  procure  their  respective  shares 
of  the  proceeds  of  the  property,  by  means  of  an  attach- 
ment. So,  in  our  opinion,  where  the  property  left,  and  to 
be  made  liable,  is  equitable  only,  the  creditors  may  unite 
in  a  bill  in  chancery  to  liquidate  their  claims,  and  to  effect 
their  common  object  of  establishing  the  liability  of  the 
property.  The  objection  to  the  bill,  therefore,  is  insuffi- 
cient, and  the  demurrer  was  correctly  overruled. 

(421) 


358-359     SUPREME  COURT  OF  INDIANA. 

Roberts  v.  Lefavour,  in  Error. 

The  Circuit  Court,  however,  committed  an  error  in  re- 
fusing to  give  the  defendants  in  that  Court  any  time 
whatever  to  make  and  tile  their  answer,  after  overruling 
the  demurrer.  A  reasonable  time  should  have  been  given 
for  that  purpose. 

Per  Curiam. — The  decree  is  reversed  with  costs.  Cause 
remanded,  &c. 

Stevens,  for  the  plaintiffs. 

Fletcher  and  Merrill,  for  the  defendants. 

(1)  Ante,  p.  129. 


Roberts  v.  Lefavour,  in  Error. 

LEFAVOUR  brought  an  action  against  Roberts,  be- 
fore a  justice  of  the  peace,  for  77  dollars,  and  ob- 
[*359]  tained  a  judgment  for  *5  dollars  and  his  costs. 
Lefavour  appealed  to  the  Circuit  Court,  and  ob- 
tained a  judgment  for  the  same  amount  with  costs.  Held, 
that  under  the  statute  of  1827,  the  judgment  in  the  Cir- 
cuit Court  for  costs  was  not  erroneous. 

The  costs  on  the  appeal  are  taxed,  under  the  statute  of 
1827,  in  such  a  manner  as  the  Court  thinks  proper  (1). 

(1)  Vide  R.  C.  1831,  p.  318. 


Glidewell  and  Another  v.  M'Gaughey. 

Pkactice — Demukkek. — On  overruling  a  demurrer  to  a  declaration,  in  an 
action  on  a  penal  bond  conditioned  for  the  performance  of  covenants,  in" 
which  declaration  the  breaches  are  assigned,  the  order  of  the  Court  is, 
that  the  plaintiff  ought  to  recover  his  said  debt  and  his  damageson  oc- 
casion of  the  detention  thereof;  but  that  judgment  should  not  be  given 
until  the  truth  of  the  breaches  assigned  is  inquired  into,  and  the  dam- 
ages are  assessed  (a). 


(a)  Post  457;  4  Blkf.  42;  6  Tnd.  387. 

(422) 


NOVEMBER  TERM,  1830.  359-360 

Glidewell  and  Another  r.  M'Gaughey. 

Same. — After  this,  if  the  Court,  by  agreement  of  the  parties,  have  inquired 
into  the  damages,  the  opinion  is  given  and  entered,  that  the  phiintifF  has 
sustained  damages,  by  reason  of  the  breaches  assigned,  to  the  amount 
of . 

Same.— The  next  and  last  steps  to  be  taken  are,  the  rendition  of  the  final 
judgment  for  the  debt  in  the  declaration  mentioned  with  costs ;  and  the 
award  of  execution  for  the  damages  assessed  with  costs  (b). 

Same — Capias  Respondendum — Joint  Defendant.— If  a  capias  ad  re- 
spondendum be  issued  against  two,  and  be  executed  on  one  only,  the 
suit  abates  as  to  the  other  on  whom  the  writ  was  not  served ;  and  no 
judgment  can  be  rendered  against  him  (c). 

Costs — Bond  for — Action  on. — A  declaration  on  a  bond  for  security  for 
costs,  stating  that  the  plaintiff  sues  for  himself  and  others,  officers  of  the 
Court,  is  bad.  Any  person  interested  may  sue  for  himself  on  the  bond, 
and  obtain  a  judgment  for  the  penalty;  and,  afterwards,  any  other 
person  interested  may,  upon  that  judgment,  have  a  scire  facias.  No 
one,  however,  has  a  right  to  sue  for  himself  and  others,  officers,  dr. 

Same — Pleading. — It  is  not  sufBcient,  in  an  action  on  such  a  bond,  to  state 
that  the  defendant  has  not  paid  the  costs,  without  setting  out  the  amount 
of  the  costs  incurred. 

ERROR  to  the  Putnam  Circwit  Court. 

Blackford,  J. — This  was  an  action  of  debt  by  M'Gaugh- 
ey, clerk  of  the  Putnam  Circuit  Court,  against  Saunders 
and  Glidewell.  The  declaration  commences  as  follows : 
Arthur  M'Gaughey,  clerk  of  the  Putnam  Circuit  Court, 
complains  for  himself  and  others,  oiticers  of  said  Court, 
who  may  be  interested  herein,  of  Henry  Saunders  and 
Robert  Glidewell,  in  custody,  &c.,  of  a  plea  that  they  ren- 
der unto  the  said   M'Gaughey,  clerk  as  aforesaid,  and 

others,  officers  of  said  Court,  who  may  be  inter- 
P360]    ested  ^herein,  the  sum  of  300  dollars,  &c.     The 

cause  of  action,  as  shown  in  the  declaration,  is  a 
bond  in  the  penalty  of  300  dollars  ;  the  condition  of  which 
is  set  out  substantially  as  follows :  Whereas  Saunders  has 
instituted  a  suit  in  the  Putnam  Circuit  Court  against 
Boyd,  now  if  the  obligors  or  either  of  them  pay  the  costs 
which  may  accrue  in  the  case,  then  the  bond  to  be  void. 
The  breach  assigned  is,  that  though  the  suit  is  determined, 

(b)  3  Blkf.  499.     (c)  7  Ind.  540. 

(423) 


360-361    SUPREME  COURT  OF  INDIANA. 

Glidewell  and  Another  v.  M'Gaughey. 

the  obligors  have  not,  nor  has  either  of  them,  paid  the 
costs,  but  have  always  refused  to  pay,  &c.  The  writ  was 
executed  on  Glidewell,  and  returned  as  to  Saunders,  "  not 
foun.d."  The  record  states  that  afterwards  the  parties 
came  by  their  counsel,  and  the  defendant  tiled  his  demur- 
rer and  the  plaintiif  his  joinder.  The  demurrer  is  signed 
— Robert  Glidewell,  defendant.  Among  other  causes,  of 
demurrer,  the  following  are  assigned:  1st,  that  the  suit  is 
commenced  in  the  name  of  M'Ganghey  and  others,  with- 
out naming  those  others;  2d,  the  amount  of  costs  ought 
to  be  exhibited  in  the  declaration.  The  Court  overruled 
the  demurrer,  and  gave  judgment  for  the  debt  in  the  dec- 
laration mentioned.  But  as  the  amount  due  was  unliqui- 
dated, the  parties  agreed  that  the  same  should  be  ascer- 
tained by  the  Court.  Judgment  was  afterwards  rendered 
by  the  Court  in  favor  of  M'Gaughey,  against  Saunders 
and  Glidewell,  for  26  dollars  and  29  cents  in  debt,  together 
with  costs. 

The  proceedings  in  this  case  are  very  irregular.  Sup- 
posing the  demurrer  to  be  correctly  overruled,  the  judg- 
ment for  the  debt  named  in  the  declaration,  viz.,  the  pen- 
alty, should  not  have  been  rendered  at  the  time  it  was. 
On  overruling  the  demurrer,  the  order  of  the  Court  should 
have  been,  that  the  plaintiff  ought  to  recover  his  said  debt 
and  his  damages  on  occasion  of  the  detention  thereof; 
but  that  judgment  should  not  be  given  until  the  truth  of 
the  breaches  assigned  are  inquired  into  and  the  damages 
assessed.  After  this,  it  would  have  been  proper  to  enter 
the  agreement  of  the  parties  referring  the  assessment  to 
the  Court.  When  the  Court  had  made  the  necessary  in- 
quiry, their  opinion  should  have  been  given  and  entered 
— that  the  plaintiff  had  sustained  damages,  by  reason  of 
the  breaches  assigned,  to  the  amount  of  26  dollars  and  29 
cents.  The  next  and  last  step  to  be  taken  was,  the  rendi- 
tion of  the  final  judgment  for  the  debt  in  the  declaration 
mentioned,  with  costs;  and  the  award  of  execution 
[*361]    for  the  damages  assessed  with  costs.     1  ''^Saund. 

(424) 


NOVEMBER  TERM,  1830.  361 

Glldewell  and  Another  v.  M'Gaughey. 

58;  3  Chitt.  PL  280,  287;  Clark  v.  G^oo^^^n,  July  term, 
1820  (1).  If  the  irregularities  just  adverted  to  did 
not  exist,  the  final  judgment  in  this  case,  against  both  the 
defendants,  would  still  be  erroneous.  The  writ  was  re- 
turned as  to  Saunders,  "not  found."  The  record  states, 
that  afterwards  the  parties  came  by  counsel,  and  the  de- 
fendant filed  his  demurrer.  The  demurrer  is  signed  by 
Glidewell  alone.  The  fair  inference  is,  that  the  pa:  ties 
who  appeared  were  the  plaintifi"  on  one  side,  and  the  de- 
fendant Glidewell  on  the  other.  The  suit  must  therefore 
be  considered,  by  the  return  of  the  writ,  abated  as  to 
Saunders;  and  no  judgment  could  be  rendered  against 
him. 

Independently,  however,  of  the  errors  in  the  record 
subsequent  to  the  overruling  of  the  demurrer,  the  Court 
erred  in  their  decision  on  the  demurrer.  The  words, 
"  for  himself  and  others,  ofiicers,  &c.,"  should  not  have 
been  inserted  in  the  declaration.  The  bond  was  given 
under  the  statute  of  1824,  as  a  security  for  costs.  Any 
person  entitled  to  recover  on  it  had  a  right  by  the  statute 
to  put  it  in  suit.  The  judgment  for  the  penalty  would 
stand  as  a  security;  and  any  other  person  entitled  might 
sue  out  a  scire  facias  on  it.  Xo  one,  however,  had  a  right 
to  claim  both  for  himself  and  "  others,  officers,"  &c.  The 
breach  assigned  in  the  declaration  is  defective.  It  was 
not  sufiicient  to  aver  generally  that  the  defendant  had 
not  paid  the  costs;  but  the  amount  of  the  costs  for  which 
the  obligors  were  liable  to  the  plaintitt',  should  have  been 
shown.  Lawes  on  Assumpsit,  230.  These  defects  in  the 
dechiration  are  fatal. 

Per  Curiam. — The  judgment  is  reversed,  &c.,  with  costs. 
Cause  remanded,  &c. 

Wick,  for  the  plaintifts. 

Whitcornb,  for  the  defendant. 

(1)  Vol.  1  of  these  Eep.  74. 


(425) 


361-362    SUPREME  COURT  OF  mDIANA. 


M'Clelland  v.  Hubbard. 


M'Clelland  v.  Hubbard. 

Execution — Notes — Trust. — A.  deposited  with  B.  a  note  for  the  payment 
of  money  against  C,  to  be  accounted  for  by  B.  to  A.  when  collected. 
[*362]    B.  afterwards  gave  up  this  note  to  the  sheriff  to  be  *sold  on  a  fee- 
bill  against  A.,  B.  and  D.,  in  a  case  in  which  A.  was  the  principal 
and  B.  and  D.  were  his  sureties.     The  sheriff,  accordingly,  levied  upon 
and  sold  the  note  to  satisfy  the  fee-bill.     Held,  that  B.,  for  this  breach  of 
duty,  was  liable  to  A.  in  action  on  the  case. 
Held,  also,  that  a  note  for  the  payment  of  money  is  not  liable  to  execu- 
tion (a). 

ERROR  to  the  Tippecanoe  Circuit  Court. 

Blackford,  J. — Trespass  on  the  case  by  Hubbard  against 
M'Clelland.  The  declaration  contains  two  counts  in  tro- 
ver for  certain  writings  obligatory  and  promissory  notes. 
There  is  also  a  count  in  case  against  the  defendant  as  a 
bailee,  for  a  breach  of  duty  relative  to  certain  instruments 
of  writing.  The  defendant  pleaded  not  guilty.  The  evi- 
dence in  the  cause  was  as  follows:  The  plaintifi'  depos- 
ited with  the  defendant  a  note,  and  took  from  him  the 
following  receipt:  "Received  of  Noah  Hubbard  one 
note  on  James  Suit,  calling  for  80  dollars,  for  v\4iich  I 
will  account  to  the  said  Hubbard,  when  collected.  Juno 
20th,  1S2S.— John  M'Clelland,  (seal)."  The  plaintiff  mad.' 
a  demand  on  the  defendant  for  this  note  before  the  com- 
mencement of  the  suit.  The  clerk  of  the  Circuit  Court 
issued  a  fee-bill  against  the  plaintift"  and  his  sureties,  on 
an  appeal-bond,  for  costs,  in  the  case  of  William  Digby, 
appellee,  v.  Noah  Hubbard,  appellant,  and  Reuben  Kelsey 
and  John  M'Clelland,  his  sureties.  The  sheriff,  by  virtue 
of  the  fee-bill,  demanded  property  of  the  defendant, 
M'Clelland,  one  of  the  sureties  in  the  appeal-bond.  It 
was  proposed  to  the  defendant  to  give  up  the  note  men- 
tioned in  the  receipt,  which  he  refused,  but  asked  of  the 
sheriff  time  to  consult  on  the  subject.  On  the  same  day, 
the  defendant  handed  over  the  note  to  the  sheriff  to  be 

(a)  4  Ind.  321. 

(426)  • 


NOVEMBER  TERM,  1830.  362-363 

M'Clelland  v.  Hubbard. 

executed  and  sold  on  the  fee-bill.  Afterwards,  and  be- 
fore the  sale,  the  defendant  gave  notice  to  the  plaintiff  of 
these  facts.  A  few  days  before  the  sale  of  the  note,  the 
phiintiff  called  on  the  defendant,  and  expressed  a  wish 
that  the  fee-bill  might  be  paid  off.  He  said  that  he  pre- 
ferred that  Digby,  the  plaintiff  in  the  fee-bill,  should  be 
made  liable,  and  that  he  did  not  wish  the  defendant  to 
suffer.  He  said  also  that  the  fee-bill  was  illegal,  and  that 
he  would  take  some  of  the  parties  into  chancery.  There 
was  proof  of  some  other  conversation  of  the  plaintiff  as 
to  his  request  to  Cox  to  pay  oft"  the  fee-bill,  rather  than 
to  have  any  more  trouble.  The  note  was  sold  at  sherift^'s 
sale  to  Kelsey,  the  highest  bidder,  for  14  dollars  and  50 
cents,  and  the  money  was  paid  by  the  sheriff"  into 
[*363]  the  clerk's  office.  *The  case  upon  this  evidence 
was  submitted  to  the  Circuit  Court.  The  judg- 
ment is  in  favor  of  the  plaintiff"  in  that  Court  for  the  sum 
of  80  dollars  in  damages,  together  with  costs.  A  motion 
was  made  for  a  new  trial  by  the  defendant  below,  which 
motion  the  Court  overruled. 

It  is  unnecessary  to  examine  whether,  in  this  case, 
there  was  such  a  conversion  of  the  note  to  the  defendant's 
use,  as  would  subject  him  to  an  action  of  trover.  The 
case  is  clear  on  the  count  charging  the  defendant  as  a 
bailee.  The  note  was  not  liable  to  execution.  Bingham 
on  Judgments,  111  (1),  The  note  was  deposited  by  the 
plaintiff' with  the  defendant  for  collection.  The  latter  in 
giving  it  up  to  the  sheriff  committed  a  breach  of  his 
duty;  and -he  is  liable  to  an  action  on  the  case  for  his 
misconduct. 

The  motion  for  a  new  trial  was  correctly  overruled. 
The  judgment  must  be  afffrmed. 

Per  Curiam. — The  judgment  is  affirmed,  with  1  per  cent. 
damages  and  costs, 

Fletcher  and  Merrill,  for  the  plaintiff". 

White,  for  the  defendant. 

(427) 


363-364   SUPREME  COURT  OF  mDIANA. 


Bowles  i .  Newhv. 


(1)  By  the  writ  of  fieri  facias,  authority  is  given  for  the  seizure  and  sale 
of  every  thing  that  is  a  chattel,  belonging  to  the  defendant,  except  his 
necessary  wearing  apparel.  Even  of  two  gowns  one  may  be  taken.  Leases 
for  terms  for  years,  corn  growing,  and  such  "fructus  industriales  "  as  would 
go  to  the  executor,  fixtures  which  were  erected  and  may  be  removed  by  the 
tenant,  an  annuity  granted  by  the  king  for  years,  money  in  defendant's 
possession,  are  liable  to  execution  under  this  writ;  but  not  apples  on  trees, 
those  fixtures,  furnaces,  &c.  which  belong  to  the  heir,  and  may  not  be  re- 
moved by  the  tenant,  bank  notes,  money  in  the  sheriff's  hands,  being  the 
surplus  of  money  levied  under  a  former  execution  against  the  defendant's 
goods,  at  the  suit  of  the  same  plaintiff,  or  damages  recovered  by  the  de- 
fendant against  the  sheriff  in  another  action,  or  money  levied  under  an 
execution  at  the  suifc  of  the  defendant ;  nor  goods  pawned,  demised  for 
years,  distrained,  or  taken  and  in  custody  of  the  sherift',  upon  a  former  ex- 
ecution ;  nor  things  which  can  not  be  sold,  as  deeds,  writings,  &c.  But 
goods  pawned  may  be  taken  upon  satisfaction  of  the  pledge,  and  goods  de- 
mised subject  to  the  right  of  the  lessee.     Bingh.  on  Judg.  cited  in  the  text. 

The  above  is  the  English  law.  For  our  statute  on  the  subject,  vide  R.  C. 
1831,  p.  234. 


[*364]  *BowLES  V,  Newby. 

Consideration — Failure  of — Pleading. — Assumpsit  by  the  assignee  of 
a  promissory  note,  payable  on  the  30th  of  October,  1829,  against  the 
maker.  Plea,  that  the  payee  and  another,  on  the  day  the  note  was  given, 
executed  to  the  maker  their  obligation  for  the  delivery  of  a  certain 
quantity  of  bricks  on  the  1st  of  May,  1829;  that  the  note  was  given  in 
consideration  of  the  delivery  of  the  bricks;  that  the  bricks  had  not  been 
delivered,  and  the  consideration  of  the  note  had  therefore  failed.  Held, 
on  demurrer,  that  the  plea  was  a  good  bar  to  the  action  («). 

APPEAL  from  the  Orange  Circuit  Court. 

Scott,  J. — Edmund  Newby,  assignee  of  Joseph  Potts, 
brought  an  action  of  assumpsit  in  the  Orange  Circuit 
Court,  against  William  A.  Bowles,  on  a  promissory  note 
for  210  dollars,  dated  October  the  30th,  1828,  and  pay- 
able twelve  months  after  date.  The  defendant  craved 
oyer,  and  jDleaded  that  Joseph  Potts,  to  whom  the  said 
note  was  made  payable,  and  one  John  Parvin,  on  the 
30th  of  October,  1828,  executed  to  him  an  obligation  for 
the  delivery  of  70.000  bricks  at  said  John  Parvin's  brick 
kiln  in  Paoli,  on  or  before  the  first  of  May,  1829;  that  in 

(a)  8  Blkf.  368  ;  see  35  Ind.  527  ;  52  Id.  331 ;  U  Id.  177  ;  51  Id.  305 ;  49 
Id.  146  ;  30  Id.  39. 

(428) 


NOVEMBER  TERM,  1830.  364-365 

Bowles  V.  Newby. 

consideration  of  the  delivery  of  the  said  bricks  he  gave 
the  said  note,  &c.,  and  avers  tliat  the  bricks  were  not  de- 
livered. By  reason  whereof  he  says  the  consideration  of 
the  said  promissory  note  has  wholly  and  entirely  failed. 
To  this  plea  there  was  a  demurrer,  and  judgment  for  the 
plaintiff;  from  which  the  defendant  has  appealed. 

It  is  alleged  in  support  of  the  judgment  of  the  Circuit 
Court  that  the  true  consideration  of  the  note  for  the 
money  was  not  the  actual  deliver}'  of  the  bricks,  but  the 
undertaking  to  deliver  them.  We  are  told  that  this  is 
the  true  construction  of  the  plea;  and  the  Circuit  Court 
so  understood  it;  and  from  this  construction  of  the  plea, 
the  conclusion  is,  that  a  failure  to  deliver  the  bricks  was 
not  a  failure  of  the  consideration  of  the  note  for  the 
money.  This  construction  of  the  plea  being  admitted, 
we  think  the  conclusion  does  not  follow.  The  bargain 
of  every  man  ought  to  be  performed  as  he  understood  it. 
Ld.  Raym.  666;  2  Saund,  352,  n.  The  time  fixed  for  per- 
formance is  a  part  of  the  contract.  1  Pet.  Rep.  465. 
The  time  for  the  delivery  of  the  bricks,  in  this  case,  being 
prior  to  the  time  for  the  payment  of  the  money, 
[*365]  shows  clearly  that  it  *was  the  understanding  of 
both  parties,  that  the  delivery  of  the  bricks  should 
precede  the  payment  of  the  purchase-money:  and  no  per- 
son can  compel  another  to  perform  his  part  of  the  con- 
tract until  he  himself  has  performed  what  he  stipulated 
to  do,  as  the  consideration  of  the  other's  promise.  2 
Saund.  352,  n.  This  doctrine  is  established  by  a  long 
train  of  decisions,  and  can  not  now  be  controverted. 
See  1  Salk.  112,  171;  Dougl.  684;  4  T.  R.  761;  8  T.  R. 
366.  Most  of  these  decisions  are  on  contracts,  where  the 
mutual  promises  are  contained  in  the  same  instrument; 
but  we  think  they  go  clearly  to  establish  the  principle 
tliat  where  a  promise  is  the  consideration,  a  failure  to 
perform  that  promise  is  a  failure  of  consideration.  This 
principle  is  fully  considered  and  ably  elucidated  in  the 
decision  of  the  case  of  the  Bank  of  Columbia  v.  Hagver,  1 

(429) 


365-366    SUPREME  COURT  OF  IXDIAXA. 

Pugh  V.  Bussel. 

I'et.  Rep.  455,  above  referred  to.  In  that  case  it  is  said 
that  if  the  seller  is  not  ready  and  able  to  perform  his  part 
of  the  agreement  on  the  day  fixed  for  its  performance, 
the  purchaser  may  elect  to  consider  the  contract  at  an 
end.  Had  the  note,  in  the  case  before  us,  expressed  on 
its  face  the  consideration  set  out  in  the  plea,  the  plaintiii" 
must  have  averred  in  his  declaration,  and  proved  on  the 
trial,  a  delivery  of  the  bricks,  or  a  readiness  to  deliver 
them,  in  order  to  show  a  right  of  action.  But,  as  the 
consideration  does  not  appear  on  the  face  of  the  note,  it 
may  be  shown  by  special  plea  under  the  statute,  which 
authorizes  the  defendant  to  allege  a  want  or  failure  of 
consideration.  R.  C.  1824,  p.  295  (1).  The  note  being 
in  the  hands  of  an  assignee  makes  no  difference;  the 
statute  making  notes  negotiable  gives  the  same  defence 
against  the  assignee  as  against  the  original  payee  of  the 
note. 

We  have  been  requested  to  revise  the  case  of  Pence  et 
al.  V.  Smock,  decided  at  our  last  May  term  (2).  We  have 
carefully  examined  that  case,  and  also  the  case  of  Leonard 
v.  Bates,  1  Blackf.  Rep.  172,  and  are  fully  satisfied  of  their 
correctness.  These,  and  the  decisions  above  cited,  all  rest 
upon  the  principle  that  the  failure  of  one  party  gives  to 
the  other  an  election  to  consider  the  contract  rescinded. 
The  judgment  must  be  reversed. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Howk,  for  the  appellant. 

Dewey,  for  the  appellee. 

[*366]  »(1)  Accord.  R.  C.  1831,  p.  405.     Wynn  y.  Hiday,  ante,  p.  123,  and 
note. 
(2)  Ante,  p.  315. 


PuGH  I'.  BuSSELo 


Insolvent — Discharge — Foreign    State. — A    debtor    was    discharged, 
under  an  insolvent  law  of  Ohio,  as  to  the  imprisonment  of  his  person, 

(430) 


NOVEMBER  TERM,  1830.  366-367 


Pugh  V.  Bussel. 

from  a  debt  due  to  the  payee  on  a  promissory  note.  The  parties  re- 
sided in  Ohio,  and  the  debt  was  there  contracted.  Held,  that  the  debtor 
might  plead  the  discharge,  so  far  as  respected  the  imprisonment  of  his 
person,  in  bar  of  an  action  brought  against  him  in  this  state  on  the  note 
by  an  assignee  thereof  (a). 

ERROR  to  the  Rash  Circuit  Court. 

Scott,  J. — Debt  by  Bussel,  assignee  of  Jackson,  against. 
Pug-h,  in  the  Rush  Circuit  Court.  The  suit  is  brought  on 
a  note,  executed  by  Pugh  to  Jackson,  when  they  both  re- 
sided in  the  state  of  Ohio.  The  defendant  pleads  a  dis- 
charge under  the  act  of  assembly  of  that  state,  for  the  re- 
lief of  insolvent  debtors,  and  claims  the  benefit  of  that 
discharge,  as  to  his  person,  here.  To  this  plea  there  is  a 
demurrer,  and  the  judgment  is  for  the  plaintiff. 

The  case  presents  but  one  question  for  our  considera- 
tion :  Is  a  discharge  of  the  defendant,  pursuant  to  the 
insolvent  law  of  Ohio,  a  bar  to  an  action,  as  to  the  defend- 
ant's person,  in  this  state?  The  contract  was  made  in 
Ohio;  the  parties  to  the  contract  were,  at  the  time,  both 
citizens  of  that  state;  the  laws  of  Ohio  gave  effect  to  the 
contract,  and  by  those  laws  its  legal  operation  ought  to 
be  determined.  If,  by  the  laws  of  Ohio,  the  person  of 
the  defendant  was  discharged  from  any  further  liability 
to  the  plaintiff  on  that  contract,  his  liability  is  not  revived 
by  his  becoming  a  resident  of  this  or  any  other  state :  but 
a  discharge,  good  by  the  laws  of  the  state  where  the  par- 
ties both  resided,  and  where  the  contract  was  made,  is 
good  everywhere.  1  Gall.  Rep.  168.  The  assignment  of 
the  note  by  Jackson  to  Bussel  does  not  affect  the  case ; 
the  assignee  acquired  all  the  rights  of  the  assignor  and 
no  more.  For  these  reasons,  as  well  as  from  a  consider- 
ation of  the  reciprocal  obligations  of  the  states,  under  the 
federal  compact,  we  think  the  discharge  of  the  defendant 
in  Ohio  is  a  good  bar  to  an  action  here,  as  to  his  person. 
The  judgment,  if  any,  ought  to  be  of  goods  and 
[*367]    ^chattels,  lands  and   tenements,  only  (1).      This 

(a)   Post  394. 

(431) 


367  SUPREME  COURT  OF  INDIANA. 

John  and  Another  v.  The  Farmers'  and  Mechanics'  Bank  of  Indiana. 

in  opinion  is  supported  by  the  decisions  of  the  Courts 
in  Massachusetts,  New  York,  Penns3dvania  and  Ohio.  1 
Dall.  Rep.  229;  2  Dall.  Rep.  100;  5  Mass.  Rep.  509;  2 
Johns.  Rep.  235,  363;  3  Binn.  Rep.  201;  5  Binn.  Rep. 
332,  336 ;  1  Hamm.  Rep.  236. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c.  (2). 

Smith,  for  the  plaintiff, 
Bariden,  for  the  defendant. 

(1)  Form  of  the  judgment  in  such  a  case:  Therefore  it  is  considered, 
that  the  said  A.  B.  do  recover  against  the  said  C.  D.  his  damages  aforesaid, 

by  the  said  inquisition  above  found,  and  also dollars  for  his  costs  and 

charges  by  him  about  his  suit  in  this  behalf  expended  ;  which  said  dama- 
ges, costs,  and  charges,  in  the  whole  amount  to dollars;  to  be  levied 

not  on  the  person  of  the  said  C.  D.,  but  on  his  goods  and  chattels,  lands  and 
tenements,  according  to  law.  And  the  said  C.  D.  in  mercv,  &c.  Bingh.  on 
Judg.  3-8. 

(2)  A  re-hearing  was  granted  in  this  cause,  but  the  same  judgment  in  it, 
as  in  the  text,  was  afterwards  rendered.  Vide  the  same  case,  Nov.  term, 
1831,  post. 


John  and  Another  v.  The  Farmers  and  Mechanics'  Bank 

OF  Indiana. 

Corporation— Forfeiture  of  Charter— Pleading.— A  plea  in  abate- 
ment to  an  action  by  a  corporation,  that  the  charter  is  forfeited  in  conse- 
quence of  a  mis-user  or  non-  ustr  of  the  franchises,  can  not  be  good,  unless 
it  show  the  forfeiture  to  have  been  judicially  declared  at  the  instance  of 
the  government  (a). 

Corporation — Note — Estoppel. — If  a  promissory  note  be  given  to  a  com- 
pany as  a  corporation,  the  maker  is  estopped  from  contending  that,  at 
the  date  of  the  note,  the  company  was  not  a  corporation  (6). 

Notes — Grace. — A  promissory  note  dated  the  Lst  of  July,  1826,  payable 
to  the  President  and  Directors  of  the  Farmers  and  Mechanics'  Bank  oi' 
Indiana,  at  their  office  of  discount  and  deposit  at  Lawrenceburgh,  on  ih.' 
1st  of  July,  1829,  is  not  entitled,  under  the  statute,  to  days  of  grace ;  noi- 
ls it  a  paper  in  which  the  corporation  is  prohibited  by  its  charter  from 
holding  an  interest. 

{a)  34  Ind.  506 ;  10  Id.  563 ;  5  Id.  77 ;  See  16  Id.  46,  456. 
(6)  10  Ind.  47  ;  8  Id.  392 ;  7  Id.  416. 

(432) 


NOVEMBER  TERM,  1830.  367-368 


John  and  Another  v.  The  Farmers  and  Mechanics'  Bank  of  Indiana. 


APPEAL  from  the  Dearborn  Circuit  Court. 

HoLMAN,  J. — The  President  and  Directors  of  tlie  Farm- 
ers and  Mechanics'  Bank  of  Indiana  filed  their  deehxra- 
tion  in  debt  against  John  &  Noble,  on  a  promissory  note 
for  200  dollars,  dated  the  1st  of  July,  1826,  and  payable 
to  the  President,  &c.,  on  the  1st  of  July,  1829,  at  the  office 
of  discount  and  deposit  of  the  said  President  and 
[*368]  Directors  in  Lawrenceburgh;  averring  a  ^demand 
of  payment,  at  their  office  of  discount  and  deposit 
in  Lawrenceburgh,  on  the  1st  of  July,  1829,  and  a  de- 
mand of  the  makers  of  the  note  on  the  30th  of  August, 
1829.  Breach,  that  the  defendants  had  not  nor  had  either 
of  them  paid,  &c.  The  defendants  pleaded  in  abatement 
that,  before  the  issuing  of  the  writ  in  this  case,  the  said 
President  and  Directors  of  the  Farmers  and  Mechanics' 
Bank  of  Indiana  had  ceased  to  be,  and  were  not  a  cor- 
poration in  fact  at  the  time  the  same  was  issued;  the  said 
corporation  having  long  before  that  time  ceased  to  elect 
their  officers,  and  exercise  their  franchises,  at  the  times 
and  in  the  manner  prescribed  by  their  charter.  To  this 
plea  there  was  a  general  demurrer,  which  the  Circuit  Court 
sustained.  The  defendants  then  demurred  to  the  declar- 
ation, but  their  demurrer  was  overruled;  and  judgment 
was  given  for  the  plaintiffs.  The  defendants  appealed  to 
this  Court. 

In  support  of  the  plea  in  abatement,  the  appellants  con- 
tend that  the  general  averment  in  the  plea,  that  the  Pres- 
ident and  Directors  had  ceased  to  be,  and  were  not  a  cor- 
poration in  fact,  being  admitted  by  the  demurrer,  forms  a 
substantive  cause  of  abatement,  without  any  reference  to 
the  subsequent  averments  in  the  plea;  that  it  includes 
every  possible  way  in  which  a  corporation  might  cease  to 
exist,  except  perhaps  by  the  death  of  all  its  members ; 
that  if,  when  this  action  was  commenced,  the  President 
and  Directors  were  not  in  fact  a  corporation,  no  matter 
by  what  means  they  had  lost  their  corporate  existence, 
they  were  not  entitled  to  this  action;  and  that  if  this 
Vol.  II.— 28  (433) 


368-369   SUPREME  COURT  OF  INDIANA. 

John  and  Another  v.  The  Farmers  and  ^lechanics'  Bank  of  Indiana. 

general  averment  is  to  be  taken  in  connection  with,  and 
qualified  by,  the  subsequent  averments  in  the  plea,  still 
the  averments  are  sufficient  to  show  that  the  corporation 
is  no  longer  in  existence;  that  although,  in  general  a  non- 
user  or  mis-user  of  corporate  powers  for  a  short  time, 
might  not,  when  presented  in  this  collateral  way,  be  con- 
sidered sufficient  to  show  the  non  existence  of  the  corpor- 
ation, yet  that  a  long  neglect  to  elect  its  officers,  and  ex- 
ercise its  franchises,  might  be  taken  as  an  abandonment 
or  surrender  of  its  charter. 

The  first  member  of  this  argument  is  defeated  by  the 
clear  distinction  that  exists  between  pleading  the  death 
of  an  individual  and  the  dissolution  of  a  corporation.  In 
the  case  of  an  individual  it  is  sufficient  to  aver  his  death. 

The  cause  or  manner  of  his  death  need  not  be 
[*369]    averred.     Not  so  with  a  corporate  *body  that  has 

no  natural  existence,  but  which  exists  only  by 
operation  of  law.  The  death  of  an  individual  is  a  simple 
fact.  The  dissolution  of  a  corporation  is  a  matter  of  law 
arising  from  facts;  and  the  facts  that  lead  to  the  legal 
conclusion  that  the  corporation  is  dissolved,  must  be 
averred  in  the  plea.  The  general  averment  in  this  plea, 
that  the  President  and  Directors  had  ceased  to  be,  and 
were  not  a  corporation  in  fact,  when  the  writ  w^as  sued 
out,  would  not  constitute  a  good  plea.  To  give  it  a  legal 
form  it  must  be  taken  in  connection  with  the  subsequent 
averments  which  give  the  reasons  for  the  general  conclu- 
sion that  the}^  have  ceased  to  exist  as  a  corporation. 
Then,  the  validity  of  this  plea  rests  upon  the  legal  con- 
clusion that  is  to  be  drawn  from  the  fact  that  the  Pres- 
ident and  Directors  had,  for  a  long  time  before  the  writ 
was  sued  out,  ceased  to  elect  their  officers,  or  to  ex- 
ercise their  franchises,  at  the  times  and  in  the  -manner 
prescribed  by  their  charter.  The  mis-user  or  non-user 
here  pleaded,  is  i:a"id  to  have  existed  for  a  long  time: 
but  if  this  time  had  no  other  limitation,  it  could  not  be 

(434) 


NOVEMBER  TERM,  1830.  369-370 


John  and  Another  v.  The  Farmers  and  Mechanics'  Bank  of  Indiana. 


presumed  to  run  further  back  than  the  date  of  the  note 
on  which  the  action  is  founded;  as  it  has  been  "decided 
that  the  appeUants,  by  contracting  with  the  appellees  as 
a  corporation,  are  estopped  from  saying  that  they  were 
not  at  that  time  a  corporation.     The  Dutchess  Cotton  Man- 
ufactory v.  Davis,  14  Johns.  R.  238.     See  also,  Henriques 
V.  The  Dutch  West  India  Company,  2  Ld.  Raym.  1532; 
Hughes  v.  The  Bank  of  Somerset,  5  Litt.  45.     But  time, 
thus  generally  pleaded,  is  altogether  uncertain  and  inde- 
finite.    No  legal  construction  can  extend  the  mis-user  or 
non-user,  averred  in  this  plea,  beyond  an  indefinite   or 
mere  point  of  time.     And  such  a  mis-user  or  non-user 
would  not  be  sufficient  to   authorize  proceedings  for  a 
seizure  of  the  corporate  franchises.     The  People  v.  Runkel, 
9  Johns.  R.  147.     But  this  plea  does  not  aver  an  absolute 
non-user  of  the  franchises  at  any  point  of  time,  but  a  neg- 
lect to  exercise  them  at  the  times  and  in  the  manner  pre- 
scribed by  the  charter.     In  the  case  of  Slee  v.  Bloom,  5 
Johns.  C.  R.  366,  as  reviewed  in  the  Court  of  Errors,  19 
Johns.  R.  456,  it  was  determined  that  a  neglect  to  elect 
the*  corporate  officers  for  several  years,  a  sale  of  all  the 
property  of  the  corporation,  and  an  evident  determina- 
tion not  to  proceed  in  the  business  contemplated  by  their 
charter,  amounted  to  such  a  surrender  of  the  fran- 
[=5=370]    chises  as  might  be  *taken  advantage  of  by  a  cred- 
itor.    But,  taking  this  plea  in  its  fullest  extent, 
it  shows  no  more  than  a  mis-user  or  non-user  of  the  fran- 
chises, which  of  itself  has  never  been  considered  such  a 
dissolution  of  a  corporation  as  could  be  taken  advantage 
of  in  a  collateral  way.     If  it  amounts  to  a  forfeiture  of 
the  corporate  rights,  that  forfeiture  must  be  judicially  de- 
termined and  declared,  at  the  instance   of  the  govern- 
ment, before  it  can  be  pleaded  by  an  individual.     Trus- 
tees of  Vernon  v.  Hills,  6  Cowen,  23.     See,  also,  the  above 
cases  of  Slee  v.  Bloom,  and  Hughes  v.  The  Bank  of  Somerset. 
The  conclusion  is  that  the  plea  is  insufficient  to  abate 
the  writ,  and   that  the  demurrer   thereto  was    properly 
sustained,  (135) 


STO-371    SUPREME  COURT  OF  INDIANA. 

John  and  Another  v.  The  Farmers  and  Mechanics'  Bank  of  Indiana. 

Tho  appellants  contend  further  that  the  declaration  is 
insufficient  to  maintain  the  action  ;  that  the  note  declared 
on  was  entitled,  under  the  act  of  assembly,  to  three  days 
of  grace,  in  like  manner  as  an  inland  bill  of  exchange; 
and  that  the  demand  at  the  office  of  discount  and  deposit 
in  Lawrenceburgh,  on  the  day  of  payment  mentioned 
in  the  note,  was  three  days  before  the  true  day  of  pay- 
ment; and  that  the  demand,  subsequently  made  of  the 
payees  personally,  was  not  a  compliance  with  the  law, 
not  being  made  at  the  place  of  payment  mentioned 
ill  tho  contract.  On  examining  the  act  of  assembly 
on  this  subject,  R.  C.  1824,  p.  330,  and  the  decision  of  tho 
Court  of  Appeals  of  Kentucky  in  Stapp  v.  Anderson,  1 
Marsh,  535,  on  a  similar  act,  we  are  of  opinion  that  the 
note  ic  not  embraced  in  the  provisions  of  the  act,  and  is 
not  entitled  to  days  of  grace.  Nor  is  it  a  paper,  as  the 
appelhxnts  contend,  in  which  the  corporation  is  prohibited 
by  its  charter  from  holding  an  interest.  It  does  not  pur- 
port to  have  been  an  article  of  traffic;  nor  does  it  appear 
that  the  corporation  traded  for  it.  It  is  introduced  by 
the  President  and  Ph*ectors  as  evidence  of  a  debt  due  to 
them  by  the  appellants;  and  there  is  nothing  in  that 
clause  of  their  charter,  by  which  they  are  restrained  from 
trading  in  anything  but  bills  of  exchange,  &c.,  that  pro- 
hibits them  from  taking  a  note,  or  any  other  instrument 
of  writing,  to  secure  the  payment  of  a  debt.  In  the  case 
of  The  Bank  of  the  United  States  v.  Norton,  3  Marsh.  422, 
it  was  decided  that  a  restraining  clause  in  the  charter  of 
the  Bank  of  the  United  States,  similar  to  the  clause  un- 
der consideration,  did  not  prohibit  that  bank  from  pur- 
chasing a  promissory  note,  and  receiving  it  -by 
[*371]  assignment,  and  *maintaining  an  action  upon  it. 
But  here  there  was  no  purchase  in  an3^sense  of 
the  ternio  The  note  is  only  evidence  of  a  promise  to  pay 
mone}^,  presumed  to  be  due  from  the  payees,  which  prom- 
ise was  susceptible  of  proof  by  other  evidence,  if  the  note 
liad  not  been  given. 

Scott,  J,  was  absent.         (436) 


NOVEMBER  TERM,  1830,  371 

The  State  v.  Peden,  in  Error. 

Per  Curiam. — The  judgment  is  affirmed,  with  2  p€r  cent. 
damages  and  costs. 

Dunn  and  Caswell,  for  the  appellants. 
Stevens  and  Stapp,  for  the  appellees. 


The  State  v.  Peden,  in  Error. 

AN  indictment  charged  the  defendant  with  having,  by 
shooting,  maliciously  wounded  and  injured  a  young  mare,, 
the  property  of  A.,  of  the  value  of  80  dollars.  Held,  that 
the  indictment  was  bad,  under  the  statute,  for  not  stating 
the  amount  of  damages  occasioned  by  the  injury  com- 
plained of. 


Yandes  and  Another  v.  Lefavour  and  Another. 

Partnership — Payment — Kelease  by. — Payment  of  a  debt  to  one  part- 
ner of  a  firm  is  good  against  the  other  partners  ;  and  a  release  by  one  part- 
ner to  a  debtor  of  the  firm  is  obligatory  on  the  others. 

Same — Evidence — Admission. — Assumpsit  in  the  name  of  A.  and  B. 
against  C,  for  work  and  labor  performed  by  the  plaintiffs  as  partners. 
The  defendant  offered  to  prove  admissions,  made  by  one  of  the  plaintiffs 
after  the  partnership  was  dissolved,  tending  to  show  that  after  the  disso- 
lution, the  parties  had  made  a  differrent  contract  respecting  the  payment 
for  the  work  than  that  under  which  the  work  had  been  done.  Held,  that 
the  evidence  was  inadmissible  (a). 

Same — Admlssion  by. — The  admission  of  one  partner  as  to  the  existence  of 
a  debt  against  the  firm,  made  subsequently  to  the  dissolution  of  the  part- 
nership, is  not  binding  on  the  other  partners. 

Same. — An  acknowledgement  of  a  debt,  made  by  one  partner  after  a  disso- 
lution of  the  partnership,  is  not  sufficient  to  take  a  case  out  of  the  statute 
of  limitations  as  to  the  other  partners. 

APPEAL  from  the  Marion  Circuit  Court. 

(«)  3  Blkf.  433 ;  2  Ind.  322 ;  6  Id.  304  ;  12  Id.  223. 

(437) 


371-372      SUPREME  COURT  OF  INDIAXA. 


Yandes  and  Another  v.  Lefavonr  and  Another. 


Holm  AN,  J. — Assumpsit,  in  the  name  of  Lefavour  anl 
!  Shrjock  against  Yandes  and  Wilson,  late  partne.  j 

[*372]  in  business,  for  *work  and  labor.  The  first  count 
is  a  general  indebitatus  assumpsit,  the  second  a 
quantum  meruit.  The  gist  of  the  action  is,  that  the  plain- 
tiffs had  jointly  performed  for  the  defendants  work  and 
labor  as  mill-wrights,  for  which  they  were  to  be  paid  the 
current  price.  This  appears  to  have  been  the  only  joint 
concern  in  which  the  plaintiffs  had  been  engaged.  On 
the  trial  in  the  Circuit  Court,  the  defendants  offered  in 
evidence  a  letter  written  by  Shryock,  several  years  after 
the  termination  of  this  joint  undertaking,  and  a  few  days 
after  this  suit  was  instituted,  in  which  he  disclaiais  all  in- 
terest in  the  suit,  and  states  that  he  and  Lefavour  did  n.)t 
complete  the  whole  of  the  work  they  had  undertaken, 
and,  in  consequence  thereof,  agreed  with  the  defendants 
to  receive  pay  for  what  they  had  done  by  the  day;  each 
to  receive  his  jjay  separately  for  the  number  of  days  he 
had  worked ;  that,  in  consequence  of  this  agreement,  the 
defendant,  Yandes,  paid  him  for  the  time  he  had  worked; 
and  that  Lefavour  was  to  receive  his  pay  in  the  same  man- 
ner. Agreeably  to  a  former  decision  of  this  Court,  so 
much  of  this  letter  as  stated  the  amount  that  Shryock 
had  received  on  this  contract  was  admitted  in  evideucCn 
and  the  other  parts  were  rejected. 

There  are  two  objects  for  which  the  appellants  claim 
the  right  of  reading  the  whole  of  this  letter.  The  first  is 
to  show  that,  by  a  subsequent  agreement,  the  joint  con- 
■  cern  of  the  appellees  w^as  so  dissolved  that  a  joint  action 
'  will  not  lie  for  any  balance  that  may  be  due  on  the  ori- 
ginal contract;  and  secondly,  to  show  that  the  original 
contract  was  changed  from  a  quantum  meruit  to  a  pay- 
ment per  diem.  We  think  the  letter  was  inadmi-ssible 
for  either  of  these  purposes.  It  is  admitted  that  paymem'- 
to  one  partner,  or  one  member  of  a  joint  concern,  is  bind 
ing  on  the  others;  and  by  the  same  rule  a  release  or  ac- 
quittance by  one  might  be  obligatory  on  the  others.     But 

(438) 


NOVEMBER  TERM,  1830.  372-373 

Yandes  and  Another  v.  Lefavour  and  Another. 

the  question  here  is  dittereut.  The  admissions  of  Shryock 
go  to  set  up  a  new  contract;  and  if  he  was  incompetent, 
at  the  time  he  made  the  admissions,  to  execute  a  new  con- 
tract that  would  bind  Lefavour,  it  would  seem  to  follow 
that  his  admissions  were  incompetent  to  prove  that  a  new 
contract  had  been  made. 

"VVe  consider  the  principle  settled,    on  American    au- 
thority, that,  after  the  dissolution  of  a  partnership,  one 

partner  can  not  bind  another  by  the  admission  of 
[*373]    a  debt.     In  Hacklnj  v.  Patrick,  *3  Johns.  R.  536, 

it  was  decided  that,  after  the  dissolution  of  a 
partnership,  the  power  of  one  partner  to  bind  the  others 
wholly  ceases ;  that  there  is  no  reason  why  his  acknowl- 
edgment should  bind  his  co-partners,  any  more  than  his 
giving  a  promissory  note  in  the  name  of  the  firm.  And, 
in  that  case,  the  acknowledgment  was  made  by  the 
partner  who  was  authorized  to  settle  the  partnership 
accounts.  The  same  principle  was  recognized  in  Walden 
V.  Sherburne,  15  Johns.  R.  409.  It  has  also  been  so  decided 
in  Kentucky.  Walker  v.  Duberry,  1  Marsh.  189.  And 
the  doctrine  of  these  cases  is  supported  by  the  Supreme 
Court  of  the  United  States.  Bell  v.  Morrison,  1  Peters, 
351.  "We  also  consider  that  the  principle  is  substantially 
settled,  that  the  acknowledgment  of  one  partner  will  not 
rake  a  case  out  of  the  statute  of  limitations.  See  an  ex- 
position of  the  cases  on  this  question  in  the  above-cited 
case  of  Bell  v.  Morrison.  In  that  case  the  position  seems 
to  be  correctly  taken,  that  a  promise  that  takes  a  case  out 
of  the  statute,  is  not  a  mere  continuation  of  the  original 
promise,  but  a  new  contract  springing  out  of,  and  sup- 
ported by,  the  original  consideration.  "And  if  so,"  con- 
tinues Judge  Story, who  delivered  the  opinion,  "as  after 
the  dissolution  no  one  partner  can  create  a  new  contract, 
binding  upon  the  others,  his  acknowledgment  is  inopera- 
tive and  void  as  to  them.'"'     1  Peters,  371  (1). 

Taking  it  then  as  the  law  that  one  partner  or  joint  con- 
tractor, after  the  joint  engagement  is  at  an  end,  can  not 

^(439) 


373-374    SUPREME  COURT  OF  INDIANA. 

M'Creary  i'.  Fike. 

make  a  new  contract  that  will  be  obligatory  on  his 
partner,  we  are  unable  to  discover  any  good  reason  why 
his  admissions  should  be  received  to  prove  a  new  contract ; 
or  how  this  general  principle  is  aftected  by  the  relative 
position  of  the  parties,  as  being  plaintiffs  or  defendants. 
We  therefore  think  the  Circuit  Court  acted  correctly  in 
rejecting  the  evidence. 

There  was  a  verdict  for  the  plaintiffs,  a  motion  for  a 
new  trial  which  was  overruled,  and  a  judgment  on  the 
verdict.  On  looking  into  the  evidence,  all  of  which  is  set 
forth  in  a  bill  of  exceptions,  it  appears  to  us  that  the  jury 
must  have  made  a  mistake  in  the  amount  of  their  verdict, 
and  that  a  new  trial  ought  to  have  been  granted.  We 
think  there  is  no  proof  of  the  items  set  down  by  Lefavour, 
on  the  bill  made  out  by  Sacket,  and  are  at  a  loss  to 
know  how  the  jury  disposed  of  the  payment  about  which 

Justice  FooTE  testified. 
[*374]     "^Per  Curiam. — The  judgment  is  reversed,  and  the 
verdict  set  aside,  with  costs.  Cause  remanded,  &c. 

Fletcher^  Merrill  and  Gregg,  for  the  appellants. 

Brown  and  Wick,  for  the  appellees. 

(1)  "It  has  been  repeatedly  held  in  this  Court,  that  though  one  partner, 
after  the  dissolution,  can  not  blind  the  otlier  by  any  new  contract,  yet  his 
acknowledgment  of  a  previous  debt  due  from  the  partnership,  will  bind 
the  other  partner,  so  far  as  to  prevent  him  from  availing  himself  of  the 
statute  of  limitations."  Per  Sutherland,  J.  Patterson  v.  Choate,  7  Wend. 
445.  An  acknowledguT^nt  within  six  years,  by  one  of  two  makers  of  a  joint 
and  several  note,  revives  the  debt  against  both.  Whitcomb  v.  Whiting, 
Doug.  652  ;  Perham  v.  Pay)iall,  9  Moore,  566  ;  Pritchard  v.  Draper,  1  Ru  ss 
&  Mylne,  191.  The  declarations  of  one  partner  may  be  proved  in  order  to 
afiect  the  other  partner's  right  in  a  partnershij)  affair,  although  touching 
matters  which  have  occurred  since  (he  dissolution  of  the  partnership,  namely, 
the  subsequent  paymant  of  a  partnership  demand.  Per  Brougham,  C. 
Pritchard  v.  Draper,  supra.  Vide  Lefavour  et  al.  v.  Yandes  ei  cd,  ante,  p.  240 ; 
9  Kent's  Comm.  2d  ed.  49. 


M'Creary  c.  Fike. 


Practice — Demurrer  to  Evidence. — A  party  does  not,  by  cross  examin- 
ing his  opponent's  witness,  preclude  himself  from  the  right  of  demurring 
to  the  evidence. 

(440) 


NOVEMBER  TERM,  1830.  374-375 

M'Creary  i'.  Fike. 

Same. — If  a  demiirrer  to  parol  evidence  contain  all  the  evidence  given,  a 
joinder  in  demurrer  may  be  demanded. 

Same. — When  a  demurrer  to  evidence  is  allowed,  the  jury  may  assess  the 
damages  conditionally;  or  they  may  be  discharged  without  making  such 
an  assessment :  in  the  latter  case,  should  the  demurrer  be  overruled,  the 
damages  may  be  assessed  by  another  jury  on  a  writ  of  inquiry  (a). 

Same. — If,  from  the  testimony  set  out  in  a  demurrer,  to  the  plaintiff's  evi- 
dence, the  jury  might  have  inferred  that  the  action  should  be  sustained, 
the  plaintiff  is  entitled  to  a  judgment  in  his  favor  (6). 

ERROR  from  the  Marion  Circuit  Court. 

Blackford,  J. — This  case  originated  before  a  justice  of 
the  peace.  Several  statements  of  the  demand  were  filed, 
which  are  designated  in  the  record  by  the  letters  B,  C,  D, 
E,  and  F.  Statement  B  is  a  transcript  from  the  docket 
of  Justice  Beeler,  showing  a  suit  by  M'Creary.  assignee 
of  Fike,  against  Thompson,  on  two  sealed  notes,  due  in 
December,  1829.  Statement  C  is  an  amended  statement, 
alleo;ii]o;  that  the  notes  filed  as  a  cause  of  action,  were  as- 
asigned  by  Fike  to  the  plaintiff',  in  consideration  of  a 
wagon  and  oxen  ;  that,  after  the  assignment,  the  plaintiff 
discovered  that  Thompson,  the  maker,  was  an 
[*375]  infant,  and  *would  plead  his  infancy  in  bar  to  a 
suit  on  the  notes  ;  and  that,  on  theplaintift''s  men- 
tioning this  to  Fike  they  made  a  new  contract ;  this  con- 
tract was,  that  the  plaintiff'  should  sue  on  the  notes,  and 
Fike  be  liable  for  the  costs  in  case  of  failure;  that  Fike 
should  pay  100  dollars  for  the  wagon  and  oxen,  and 
deduct  from  the  amount  whatever  he  might  recover  from 
Thompson.  The  plaintiff*  avers  that  he  sued  on  the  notes ; 
and  that  Thompson,  having  pleaded  infancy  and  fraud, 
ol)tained  judgment.  Statement  D  is  four  sealed  notes 
given  by  Thompson  to  Fike,  and  assigned  by  the  latter  to 
the  plaintiff".  Two  of  these  we're  due  in  December,  1829  ; 
the  others,  in  December,  1881.  Statements  E  and  F 
relate  to  costs  and  other  charges  not  necessary  to  be  par- 

(a)  48  Ind.  100  j  42  Id.  294;  8  Id.  264.     (6)  60  Ind.  172. 

(441) 


375-376   SUPREME  COURT  OF  IXDIAIN'A. 

M'Creary  v.  Fike. 

ticularly  uoticed.  To  these  statements  of  demand,  the 
defendant  pleaded  non-assumpsit;  and  also,  that  the 
plaintiff  owed  him  a  certain  sum  for  a  mare  sold  and  de- 
livered. On  the  trial  before  the  justice,  the  plaintiff 
recovered  a  judgment.  The  defendant  appealed  to  the 
Circuit  Court. 

To  prove  his  case,  on  the  appeal,  M'Creary  introduced 
several  witnesses;  some  of  whom  were  cross-examined 
by  the  defendant.  The  evidence  tended  to  show  the  new^ 
contract  to  be,  that  M'Creary  was  to  sue  Thompson  on 
the  two  notes  which  were  due ;  and  that  a  failure  in  such 
suit  on  the  ground  of  fraud,  or  the  maker's  infancy,  should 
establish  the  liability  of  Fike  as  averred  in  the  statements 
of  the  demand.  The  transcript  from  the  docket  of  Jus- 
tice Beeler,  of  the  suit  against  Thompson  on  tho  notes 
due,  showing  a  judgment  for  Thompson  with  costs,  was 
given  in  evidence.  There  was  parol  proof,  that  Thomp- 
son's defence  in  the  cause  was  infancy  and  fraud;  and 
there  was  evidence  tending  to  show  that  the  defendant 
had  a  demand  for  the  price  of  the  mare  mentioned  in  the 
plea.  The  defendant,  having  set  out  the  whole  of  the 
evidence,  proposed  to  demur  to  the  same,  and  requested 
that  the  jury  might  be  discharged.  The  plaintiff  objected 
to  the  demurrer;  but  the  Circuit  Court  admitted  it,  and 
ruled  the  plaintiff  to  join.  A  joinder  was  filed,  and  the 
jur}'  discharged.  The  defendant  obtained  judgment  on 
the  demurrer. 

The  plaintiff",  M'Crearj',  complains  of  this  judgment  on 
these  grounds:  1st,  that  the  defendant,  after  cross-exam- 
ining the  witnesses,  could  not  demur;  2d,  that  the  plain- 
tiff could  not  be  compelled  to  join  in  demurrer; 
[*376]  3d,  that  the  jury  was  illegally  ^discharged  ;  4th, 
that  the  evidence* authorized  a  judgment  for  the 
plaintiff.  The  first  two  objections  are  not  tenable.  The 
practice  is  well  settled  that  the  defendant,  under  the  cir- 
cumstances of  the  case,  had  a  right  to  demur,  and  the 
phuntift'  was  bound  to  join   in  demurrer.     There  is   no 

(44i>) 


NOVEMBER  TEKxM,  1830.  376 

M'Creary  v.  Fike. 

foundation  for  the  third  objection.  The  discharging  of 
the  jury  was  not  erroneous.  In  these  cases,  there  are  two 
modes  of  proceeding.  Whenever  a  demurrer  to  evidence 
is  allowed,  the  jury  may  assess  the  damages  cop'^^^'^nally ; 
or  they  may  be  discharged  without  such        -ssj-  In 

the  latter  case,  should  the  demurrer  bi.  "e  lu.^v..,  the 
damages  may  be  assessed  by  another  jury  on  a  writ  of  in- 
quiry.    1  Arch.  Pr.  209. 

On  the  fourth  objection,  the  plaintiff  must  succeed. 
The  defendant,  to  support  the  judgment,  contends  that 
the  contract  set  out  in  the  statement  of  the  demand  dif- 
fers from  the  one  proved;  the  former  showing  that  all 
the  notes  were  to  be  sued  on ;  the  latter,  that  it  was  ne- 
cessary to  sue  on  the  two  only  which  were  due.  This  po- 
sition of  the  defendant  is  not  sustainable.  The  several 
statements  of  the  cause  of  action  relative  to  what  notes 
were  to  be  sued  on,  are,  when  taken  together,  consistent 
with  the  proof.  The  notes  alluded  to  in  the  statement 
marked  C  must  have  reference  to  the  two  notes  wliich 
were  due,  and  which  are  described  in  the  previous  state- 
ment marked  B.  The  description  of  the  cause  of  action, 
and  the  evidence,  both  show  that  the  defendant's  liability 
to  the  plaintiff  depended  on  the  result  of  a  suit  against 
Thompson  on  the  notes  due  in  December,  1829.  This 
evidence  relative  to  the  notes  to  be  sued  on,  together  with 
the  other  testimony  given  in  the  cause,  conduced  to  prove 
all  the  facts  necessary  to  support  the  action.  Whether, 
from  the  evidence  set  out  in  the  record,  a  jury  would  have 
found  for  the  plaintiff,  is  not  for  the  Court  to  decide. 
There  was  proof  from  which  a  jury  might  have  inferred 
that  the  action  should  be  supported  ;  and  that  was  suffi- 
cient for  the  plaintiff.  It  is  our  opinion,  therefore,  that 
the  judgment  of  the  Circuit  Colirt  on  the  demurrer  to 
evidence  should  have  been  in  favor  of  the  plaintiff. 

Per  Curiam. — The  judgment  is  reversed,  &c.,  with  costs. 
Cause  remanded,  &c.  (1). 

(443) 


376-377    SUPREME  COURT  OF  INDIA:N^A. 

Brackenridge,  Administrator,  v.  Holland  and  Others. 

Brown,  for  the  appellant. 

Fletcher  and  Merrill,  for  the  appellee. 

[*377]    *(1)   Are-hearing  was  granted  in  this  case ;  but  the  same  judgment 
in  it,  as  above,  was  afterwards  rendered. 


Brackenridge,  Administrator,  v.   Holland   and    Others. 

Decedent's  Estate — Settlement — Review. — The  jurisdiction  of  a  Court 
of  Chancery  extends  to  the  accounts  of  administrators,  though  settled  in 
the  Probate  Court,  if  there  be  evidently  a  mistake  or  fraud  in  the  settle- 
ment (a). 

Trustee — Purchase  of  Trust  Property. — A  trustee,  no  matter  how  or 
from  whom  he  delivers  his  authority,  can  not  purchase  the  trust-estate  so 
as  to  make  a  profit  to  himself.  He  is  not  prohibited  from  purchasing ; 
but  his  purchase,  when  made,  is  for  the  benefit  of  the  centui  que  Irust  who 
may,  if  he  apply  within  a  reasonable  time,  have  a  re-sale.  If  the  prop- 
erty be  oflfered  for  sale  a  second  time,  and  there  be  no  advance,  the 
trustee  is  held  to  his  purchase. 

Same. — If  an  administrator,  authorized  by  an  order  of  Court  to  sell,  at 
public  sale,  the  real  estate  of  his  intestate  for  the  payment  of  debts,  pur- 
chase the  land  himself  at  the  sale,  and  afterwards  .sell  the  same  at  an 
advanced  price,  he  is  liable  to  account  for  the  profits  to  the  heirs,  for 
whose  benefit  the  administrator's  purchase  must  be  considered  to  have 
been  made.  And  the  effect  is  the  same,  whether  the  purchase  be  made 
by  the  administrator  alone,  or  jointly  with  another ;  or  whether  it  be 
made  in  person  or  by  an  agent  (b). 

Same — Amount  of  Liability. — If,  owing  to  the  conduct  of  the  adminis- 
trator, any  uncertainty  exists  as  to  the  amount  of  the  profits  made  by 
him  on  the  purchase,  he  will  be  chargeable  with  the  largest  amount 
which,  from  the  circumstances,  he  can  be  presumed  to  have  realized. 

Same — It  is  a  rule,  both  at  law  and  in  equity,  that  if  a  person  having  charge 
of  the  property  of  another,  so  confounds  it  with  his  own  that  it  can  not 
be  distinguished,  he  must  bear  all  the  inconvenience  of  the  confusion ; 
and,  if  it  be  a  case  of  damages,  the  damages  given  against  him  will  be  to 
the  utmost  value  of  the  property. 

ERROR  to  the  Franklin  Circuit  Court. 
HoLMAN,  J. — The  heirs  of  John  Holland,  deceased,  filed 
their  bill  in  chancery,  stating  that  their  father  in  his  life- 

(a)   Ante,  .343;  12  Irid.  381. 

(6)  51  Ind.  292 ;  20  M.  193 ;  21  Jd.  80 ;  12  Id.  266 ;  49  Id.  114. 

r444) 


NOYEMBER  TERM,  1830.  377-378 

Brackenridge,  Administrator,  v.  Holland  and  Others. 

time,  about  the  1st  of  i!^ovember,  1817,  purchased  of  Rob- 
ert and  Joseph  Brackenridge,  a  tract  of  kxnd  for  the  sum 
of  2,490  dollars ;  of  which  he  then  paid  600  dollars,  and 
was  to  pay  the  balance  by  installments,  for  which  he  exe- 
cuted several  notes,  bearing  interest  from  the  date,  the 
last  payment  to  be  made  in  six  years;  that  their  father 
died  in  1818,  and  administration  of  his  estate  was  com- 
mitted to  Joseph  Brackenridge  and  George  L.  Murdock; 
that  the  administrators  received  large  sums  of  money  for 
the  personal  property,  and  for  debts  due  to  the  decedent, 
which,  with  the  annual  profits  of  the  land,  would  have 
enabled  them  to  pay  off  the  notes  for  the  purchase- 
money  of  the  land  as  the}'  became  due;  there  be- 
[*378]  ing  no  other  debts  of  any  ^considerable  amount 
against  the  decedent;  that,  notwithstanding  this, 
Brackenridge,  in  the  absence  of  Murdock,  filed  an  affi- 
davit in  the  Probate  Court,  stating  that  the  personal  es- 
tate was  insufficient  to  pay  the  debts,  and  thereby  pro- 
cured an  order  of  the  Probate  Court,  in  June,  1819,  for  a 
sale  of  the  land;  that  he  made  no  return  of  his  proceed- 
ings under  said  order;  but,  from  a  deed  in  the  recorder's 
office,  it  appears  that  Robert  and  Joseph  Brackenridge, 
on  the  20th  of  August,  1819,  conveyed  the  said  land  to 
Piatt,  Grandon  and  Armstrong,  in  consideration  of  2,500 
<lollars;  that  by  the  records  of  the  Probate  Court  of  the 
25th  of  February,  1823,  it  appears  that  the  administra- 
tors made  a  settlement  of  the  accounts  in  that  Court; 
and,  in  the  account  then  exhibited,  the  estate  is  credited 
by  1,600  dollars  as  the  price  of  the  land,  instead  of  the 
sum  of  2,500  dollars  ;  that,  from  this  settlement  it  ap- 
pears that  there  was  then  in  the  hands  of  the  adminis- 
trators the  sum  of  209  dollars  and  86  cents;  but  the  bill 
charges  that  this  settlement  did  not  embrace  the  moneys 
received  by  Murdock,  and  was  not  a  correct  account  of 
the  moneys  received  by  Brackenridge.  The  bill  further 
charges  that  Murdock  has  received  and  wasted  moneys 
belonging  to  the  estate  to  the  amount  of  600  dollars,  and 

(445) 


378-379    SUPREME  COUIIT  OF  INDIANA. 

Brackenridge,  Administrator,  v.  Holland  and  Others. 

states  that  in  1826,  Joseph  Brackenridge  died,  and  Rob- 
ert Brackenridge  was  appointed  liis  administrator.  Rob- 
ert Brackenridge  and  Murdock  are  made  defendants. 
The  bill  prays  for  a  full  account  of  the  administration, 
and  that  the  estate  of  Joseph  Brackenridge,  in  the  hands 
of  Robert  Brackenridge,  may  be  charged  with  the  2,500 
dollars  for  which  the  land  was  sold. 

Robert  Brackenridge  pleaded,  in  bar  c^f  the  action,  the 
settlement  made  in  the  Probate  Court  by  Joseph  Brack- 
enridge. To  this  plea  there  was  a  demurrer,  which  was 
sustained  by  the  Circuit  Court.  He  then  answered ;  and 
his  answer  admits  the  sale  of  the  land  to  Holland,  but 
states  that  a  large  quantity  of  personal  property  was  in- 
cluded in  the  contract.  He  states  that  he  does  not  know 
the  value  of  the  personal  estate,  or  the  manner  in  which 
it  was  administered,  but  by  reference  to  the  account  ren- 
dered by  Joseph  Brackenridge  in  the  Probate  Court, 
which  he  believes  to  be  correct;  that  the  land  was  sold, 
by  virtue  of  the  order  of  the  Probate  Court,  at  public 
auction;  that  the  sale  was  fair;  that  he  and  his  partner, 
Joseph  Brackenridge,  became  the  purchasers  at 
[*379]  the  sum  of  1,600  dollars,  which,  *he  avers,  w^as 
the  full  value;  and  that  they  made  the  purchase 
for  themselves,  and  not  for  the  benefit  of  the  heirs.  He 
admits  that  he  and  his  partner  sold  the  land  to  Piatt, 
Grandon,  and  Armstrong,  and  that  the  consideration  that 
IS  expressed  in  the  deed  is  2,500  dollars;  but  he  says  that 
that  was  not  the  real  consideration,  as  the  land  was  ex- 
changed, with  other  real  property,  for  a  lot  of  merchan- 
dise estimated  at  6,000  dollars ;  and  that  he  does  not  be- 
lieve it  would  have  sold  for  1,600  dollars  in  cash, 

Murdock  answered,  and,  with  some  account  of  his 
separate  administration,  denies  taking  any  part  in  the  set- 
tlement in  the  Probate  Court ;  stating  that  it  was  made 
without  his  knowledge,  and  that  he  had  no  hand  in  re- 
ceiving or  disbursing  any  part  of  the  estate  set  forth  in 
that  account.     He  denies  having  any  concern  in  the  sale 

(446) 


NOVEMBER  TERM,  1830.  379-3b0 


Brackenridge,  Administrator,  i-.  Holland  and  Others. 


of  the  land  ;  and  states  that,  being  about  to  leave  the 
state,  his  co-administrator  expressed  an  opinion  that  the 
estate  was  perfectly  solvent,  and  that  he  was  willing  to 
take  back  the  land  in  discharge  of  the  debt  due  from  the 
estate  to  himself  and  partner ;  and  that  during  his  ab- 
sence the  land  was  sold. 

We  learn  from  the  depositions,  that  Holland,  when  he 
purchased  the  land,  received  with  it,  of  R.  and  J.  Brack- 
enridge  about    500  dollars   worth  of  personal  property, 
which   formed  a  part  of  the  contract;  that  1,600  dollars 
was   a  high  price  for  the  land,  at  the  time  it  was  pur- 
chased by  R.  and  J.  Brackenridge  in  1819  ;  but  that  no 
material  variation  had  taken  place  in  the  value  of  the 
land  between  the  years  1817  and  1819.     The  order  of  the 
Probate  Court  shows,  that  the  Court  fixed  the  terms  of 
credit,  the  day  and  place  of  sale,  and  ordered  their  clerk  to 
make  out  advertisements,  &c.    The  auctioneer  testifies  that 
the  sale  was  public,  that  a  large  collection  of  people  were 
present,  that  the  land  was  cried  for  a  long  time,  and  was 
bid  off  by  John  Shanks  for  R.  and  J.  Brackenridge.  Gran- 
don,  one  of  the  firm,  to  whom  R.  and  J.  Brackenridge  sold 
the  land,  states  that  it  was  purchased  by  them,  with  other 
real  property,  in  a  contract  for  merchandise ;  that  the  only 
reason  why  they  purchased  the  land  was,  that  they  had 
a  large  quantity  of  merchandise,  and  were  anxious  to  dis- 
pose^of  it.     Murdock's  deposition  was  taken,  in  which  he 
makes    some  charges    against    his    co-administrator  of 
moneys  not  accounted  for,  and  repeats  the  state- 
[*380]    ment  in  his  answer  *that  his  co-administrator  ex- 
pressed a  willingness  to  take  back  the  land  in  dis- 
charge of  the  debt  to  himself  and  partner. 

On  the  final  hearing  of  the  cause,  the  Circuit  Court 
entered  a  decree  against  Robert  Brackenridge,  as  admin- 
istrator of  Joseph  Brackenridge,  for  the  sum  of  569 
dollars  and  62  cents,  with  interest  from  the  25th  of  Feb- 
ruary, 1823,  amoutingin  all  to  808  dollars  and  86  cents,  to 
be  levied  of  the  goods,  &c.,  of  his  intestate  ;  and  a  decree 

(117) 


380-381    SUPREME  COURT  OF  INDIANA. 

Brackenridge,  Administrator,  i.  Holland  and  Others. 

aii;iii  list  both  of  the  defendants,  for  104  dollars  and  25  cents 
principal  and  interest,  being  a  sum  for  which  the  estate 
of  Joseph  Brackenridge  and  Mnrdock  were  jointl}' 
liable  ;  and  postponed  the  account  of  the  separate  admin- 
istration of  Murdock  for  further  consideration.  From 
this  decree,  Brackenridge  alone  appealed  to  this  Court. 

Two  leading  questions  are  presented  for  our  determina- 
tion. The  first  regards  the  jurisdiction  of  a  Court  of 
chancery,  to  inquire  into  a  settlement  of  an  administra- 
tion account  in  the  Probate  Court.  The  second,  the  right 
of  an  administrator  to  purchase  lands  which  he,  as  ad- 
ministrator, is  authorized  to  sell. 

The  first  has  been  settled,  at  the  present  term,  in  the 
case  of  Allen  v.  Clark.  It  is  there  determined,  that  the 
settlement  in  the  Probate  Court  is  to  be  taken  as  prima. 
facie  correct,  but  is  not  conclusive  ;  that,  on  a  proper  case 
beingmade,  the  account  maybe  re-examined  in  a  Court  of 
chancery.  Here,  the  disposition  of  the  land  presents  a 
case  that  more  particularly  requires  the  interposition  of 
a  Court  of  chancery. 

The  second  question  seems  also  to  be  settled.  A  trustee, 
no  matter  how  or  from  whom  he  derives  his  authority, 
can  not  purchase  the  trust-estate  so  as  to  make  a  profit 
to  himself.  There  is  no  general  rule  that  he  shall  not  be 
a  purchaser;  but  if  he  is,  his  purchase  is  for  the  benefit 
of  the  cestui  que  trust.  If  the  trustee  to  sell  becomes  a 
purchaser,  however  fair  the  transaction,  it  is  subject  to  an 
option  in  the  cestui  que  trust,  if  he  comes  in  a  reasonable 
time,  to  have  a  re-sale.  Campbell  v.  Walker,  5  Yes.  678. 
If  it  is  offered  for  sale  a  second  time,  and  there  is  no  ad- 
vance of  price,  the  trustee  is  held  to  his  purchase.  Lis- 
ter V.  Lister,  6  Ves.  631.  Where  the  sale  was  effected 
through  the  medium  of  a  trustee,  and  he  became  the  pur- 
chaser, though  without  fraud,  and  by  auction,  the  sale  was 
set  aside;  the  circumstance  of  its  having  been  by  auction 
made  no  difference.  Sanderson  v.  Walker,  13  Ves. 
[-''381]    600.     A  trustee  is  not  permitted  *to  purchase  a 

(^-18) 


NOVEMBER  TERM,  1830.  381 

Brackenridge,  Administrator,  v.  Holland  and  Others. 

mortgage,  or  judgment,  that  is  a  lien  on  the  trust-estate 
for  his  own  benefit.  Green  v.  Winter,  1  J.  C.  R.  27.  An 
executor,  acting  with  regard  to  tlie  testator's  property 
in  any  other  manner  than  the  trust  requires,  is  answerable 
to  the  cestui  que  trust  for  any  gain,  and  liable  for  any  loss. 
Piety  V.  Stace,  4  Ves.  620.  In  Maryland,  an  administrator 
or  executor  can  not  purchase  at  his  own  sale,  and  the  con- 
firmation of  such  purchase  in  the  Orphans'  Court  does 
not  preclude  the  Court  of  chancery  from  setting  it  aside. 
Conway  v.  Green,  1  Har.  &  J.  151.  In  North  Carolina,  an 
executor  is  not  permitted  to  become  a  purchaser  in  a  sale 
made  by  him  as  executor,  notwithstanding  such  sale  be 
public,  necessary,  fair,  and  for  a  full  price.  Ryden  v.  Jones, 
1  Hawks.  497.  In  South  Carolina,  the  same  principle  is 
maintained  to  a  general  extent.  Perry  v.  Dixon,  4  De- 
sauss.  504.  The  three  last  cases  are  given  on  the  author- 
ity of  3  Wharton's  American  Digest,  276,  278.  The  case 
of  Guier  v.  Kelly,  2  Binn.  294,  cited  by  the  counsel  for 
the  appellant,  accords  in  principle  with  these  decisions. 
A  contrary  doctrine  seems  to  prevail  in  Virginia;  but  we 
think  from  the  foregoing  cases,  and  many  more  that  are 
in  accordance  with  them,  that  the  purchase  made  by  R. 
and  J.  Brackenridge,  under  the  order  of  the  Probate 
Court,  must  be  considered  as  made  for  the  benefit  of  the 
heirs.  The  circumstances  of  the  time,  place,  terms  of 
credit,  and  manner  of  giving  notice  of  the  sale,  being 
regulated  by  the  Probate  Court,  does  not  materially 
change  the  case,  as  much  was  still  left  in  the  power  of 
the  administrator;  and  he  might  have  exerted  an  influ- 
ence on  the  sale  that  lies  beyond  the  ordinary  means  of 
detection.  The  object  of  the  rule  is  to  banish  from  his 
mind  all  thought  of  speculating  on  the  trust-estate.  A 
method  is  suggested  in  the  books,  whereby  he  might  le- 
gally become  the  purchaser.  If  the  land  was  publicly 
exposed  to  sale,  and  he  was  willing  to  go  beyond  the  high- 
est bid,  he  might  postpone  the  sale,  tile  a  bill,  or  report 
the  fact  to  the  Court  from  whence  he  derived  his  author- 
VoL.  II.— 29  (449) 


381-382   SUPREME  COURT  OF  mDIA:N'A. 

Brackenridge,  Administrator,  v.  Holland  and  Others. 

ity;  showing  the  amount  of  the  highest  bid,  and  that  he 
was  willing  to  give  more.  The  Court  might  order  that 
he  should  have  the  land.  Davoue  v.  Fanning,  2  J.  C.  R. 
261 ;   Cam])bell  v.  Walker,  5  Ves.  678. 

This  case  is  not  altered,  in  principle,  by  Robert  Brack- 
enridge uniting  with  the  administrator  in  the  pur- 
[*382]  chase,  nor  by  the  land  *being  bid  oft'  for  them  by 
Shanks;  for  the  rule  extends  to  a  purchase  made 
by  a  trustee  for  another  person ;  ex  jutrte  Bennett,  10  Ves. 
381 ;  and  to  a  purchase  made  by  a  third  person  for  the 
wife  of  the  trustee.  Davoue  v.  Fanning,  2  J.  C.  R.  252. 
In  this  last  case,  the  executor  was  authorized  to  sell  lands 
to  raise  legacies  for  the  testator's  children,  of  whom  the 
wife  of  the  executor  was  one.  The  executor  and  his  wife 
authorized  a  third  person  to  purchase  in  trust  for  the  wife. 
After  the  purchase,  large  improvements  were  made  on 
the  land.  Chancellor  Kent,  after  reviewing  a  long  train 
of  uniform  decisions  on  the  subject,  ordered  a  re-sale  :  the 
land  to  be  set  up  at  a  sum  which  included  the  price  of 
the  former  purchase  and  the  value  of  the  improvements; 
and,  if  it  would  not  sell  for  more,  the  purchase  to  stand, 
but  if  it  sold  for  more,  the  former  sale  to  be  vacated. 
The  rule  mentioned  in  some  of  these  cases,  that  the  cestui 
que  trust  must  apply  in  a  reasonable  time  to  have  a  re-sale, 
or  the  purchase  will  be  considered  valid,  does  not  apply 
in  this  case.  Most  of  the  heirs  are  still  minors,  whose  in- 
terest is  seldom  aftected  by  lapse  of  time ;  besides,  the 
sale  of  the  land  by  R.  and  J.  Brackenridge  to  Piatt,  Gran- 
don  and  Armstrong,  in  less  than  two  months  after  the 
purchase,  and  before  any  report  was  made  of  the  proceed- 
ings under  the  order  of  sale,  precluded  the  heirs  from  de- 
manding a  re-sale.  In  such  a  case,  the  rule  is^  that  the 
trustee  shall  account  for  all  the  profits  he  has  made.  One 
of  several  trustees  having  purchased  the  trust-property, 
and  afterwards  sold  it  at  a  profit,  was  decreed  to  account 
for  that  profit.  Whichcote  v.  Lawrence,  3  Ves.  740.  In 
Rayidall  v.  Errington,  10  Ves.  422,  there  was  a  fair  sale, 

(450) 


NOVEMBER  TERM,  1830.  382-383 

Brackenridge,  Administrator,  t.  Holland  and  Others. 

and  the  trustee  purchased  at  auction  for  a  full  price,  yet 
as  he  had  sold  a  part  at  some  profit,  the  Court  opened 
the  sale,  at  the  instance  of  the  cestui  que  trust,  as  to  the 
parts  unsold,  and  compelled  the  trustee  to  account  for  the 
profits  on  the  parts  he  had  sold.  An  executrix  sufiered 
land,  of  which  the  testator  died  seized,  to  be  sold  under  a 
mortgage,  and  became  the  purchaser  in  her  own  right, 
and  afterwards  sold  it;  and  she  w^as  held  accountable  to 
the  heirs  for  the  proceeds  of  the  sale.  Evertson  v.  Tapperiy 
5  J.  C.  R.  497  (1). 

The  most  serious  difficulty  in  this  case  is  to  determine 
the  amount  of  profits  made  by  R.  and  J.  Brackenridge  in 
selling  this  land  to  Piatt,  Grandon  and  Armstrong.     The 

consideration  in  the  deed  is  2,500  dollars,  which 
[*383]    is  900  dollars  more  than  the  *price  of  the  first 

sale ;  but  the  land  was  exchanged  with  other  prop- 
erty, for  a  lot  of  merchandise.  This  difficulty,  however, 
arises  from  the  act  of  the  administrator,  and  he  is  charge- 
able with  all  the  inconveniences  that  have  resulted  from 
that  act.  The  rule  both  in  law  and  equity  is,  that  if  a 
person  having  cliarge  of  the  property  of  another  so  con- 
founds it  with  his  own  that  it  can  not  be  distinguished, 
he  must  bear  all  the  inconvenience  of  the  confusion.  If 
:t  be  a  case  of  damages,  damages  will  be  given  against 
him  to  the  utmost  value  of  the  articles.  Lupton  v.  White, 
15  Ves.  432;  Hart  v.  Ten  Eyck,  2  J.  C.  R.  62;  Armory  v. 
Delamirie,  1  Strange,  505.  This  rule,  applied  in  all  its 
strictness,  would  charge  the  administrator  with  the  nom- 
inal amount  stated  in  the  deed  as  the  consideration  of  the 
conveyance,  unless  he  could  show  that  the  consideration 
was  a  less  sum.  And,  although  that  sum  was  received  in 
merchandise,  the  case  w^ould  not  be  altered,  unless  it  was 
clearly  shown  that  there  was  a  difference  between  that 
amount  in  merchandise  and  in  cash,  and  what  that  differ- 
ence was.  There  are  some  other  facts  in  the  case  that 
have  a  remote  bearing  on  this  question.  A  short  time 
before  the  sale  of  this  land  by  the  administrator  he  ex- 

(451) 


383-384    SUPREME  COURT  OF  IXDIAXA. 

Brackenridge,  Administrator,  t.  Holland  and  Others. 

pressed  to  bis  co-administrator  a  ^yilli^glless  to  take  back 
tbe  laud  iu  discbarge  of  tbe  original  porcbase-money, 
wbicb  tben  amounted  to  near  2,000  dollars,  wbicb  would 
bave  allowed  tbe  estate  of  Holland  nearly  400  dollars 
more  tban  be  bas  accounted  for.  Tbis  land  was  pur- 
cbased  by  Holland  of  R.  and  J.  Brackenridge  in  1817,  for 
1,990  dollars,  allowing  500  dollars  as  tbe  price  of  tbe  per- 
sonal property,  and  supposing  500  dollars  of  tbe  money 
advanced  by  Holland  were  to  pay  for  tbe  personal  prop- 
erty. Tben,  100  dollars  were  advanced  for  tbe  land. 
For  tbe  balance  a  credit  was  given,  but  it  bore  interest 
from  tbe  time  of  tbe  purcbase.  Tben,  at  tbe  time  of  tbe 
administration  sale,  tbe  amount  due  for  principal  and  in- 
terest, togetber  witb  tbe  sum  advanced,  was  but  little 
sbort  of  2,200  dollars;  wbicb  was  tbe  sura  tbat  tbe  beirs 
of  Holland  might  be  said  to  be  paying,  and  R  and  J. 
Brackenridge  receiving  for  tbe  land,  at  tbe  time  tbey  bid 
it  off  at  1,600  dollars,  and  at  tbe  time  tbey  sold  it.  as  tbey 
say,  for  tbe  nominal  consideration  of  2,500  dollars;  and 
we  learn  tbat  no  material  variation  in  tbe  price  of  tbe 
land  bad  taken  place  between  tlie  time  wben  Holland 
purchased  and  tbe  time  of  tbe  sale  to  Piatt,  Gran- 
[*384]  don  and  Armstrong.  We  ^mention  tbese  circum- 
stances, not  as  presenting  any  definite  criterion 
of  tbe  profit  made  by  tbe  administrator,  but  to  sbow  tbat 
be  bas  but  little  reason  to  complain  of  tbe  decree  of  tbe 
Circuit  Court. 

Tbere  is  so  mucb  obscurity  in  tbe  accounts  of  botb  tbe 
admininistrators  as  to  tbeir  separate  and  joint  adminis- 
tration, tbat  we  are  not  able  to  discover  tbe  precise  data 
upon  wbicb  tbe  Circuit  Court  predicated  its  decree ;'but 
tbis  is  unimportant,  as  we  are  fully  satisfied  tbat  tbe 
separate  decree  against  Brackenridge,  from  wbicb  alone  it 
is  presumed  be  appealed,  is  authorized  by  tbe  facts  in 
the  case,  and  must  be  nflirmed. 

Per  Curiam. — The  decree  is  affirmed,  with  2  j)er  cent. 
damages  and  costs. 

(452) 


NOVEMBER  TERM,  1830.  384-385 


Porter  r.  Brackenridge. 


M' Kinney  and  Caswell,  for  the  plaiutifl'. 
Morris,  for  the  defendant. 

(1)  Vide  Whelpdale  v.  Cookson,  1  Ver.  sem.  9.  Same  case  stated  more  at 
large,  Belt's  Siipp.  7.  "Although  there  is  no  positive  rule,  that  a  trustee  to 
sell  shall  not,  in  any  case,  be  himself  the  purchaser,  inasmuch  as  he  is  not 
precluded  from  entering'  into  a  new  contract  Y>'ith  his  cestui  que  trust,  yet 
he  is  not  permitted  in  any  other  case  to  make  a  profit  to  himself.  Whichcote 
V.  Laurence  3  Ves.  jun.  740.  Upon  which  see  Ld.  Eldon  C.'s  observations, 
6  Ves.  626. 

The  purchase  in  Coles  v.  Trecothick,  9  Ves.  234,  was  supported  upon  the 
ground  of  a  distinct  and  clear  contract  with  the  cestui  que  iimst,  he  having 
the  fullest  information,  and  having  the  sole  management ;  the  trustee  being 
passive  as  to  the  latter  circumstances.  Fox  v.  Macbeth,  2  Bro.  400,  and 
affirmed  on  appeal  in  Dom.  Proc.  1791,  is  considered  as  a  leadiug  case  in 
support  of  the  rule  that  a  trustee  for  sale  shall  not  take  advantage  of  his 
situation  so  as  to  purchase  for  his  Own  benefit. 

To  set  aside  such  a  purchase,  it  is  not  incumbent  upon  the  party  to  show 
that  the  trustee  has  made  an  advantage,  8  Ves.  348  ;  but  it  is  in  the  choice 
of  the  cestui  que  trusts  to  judge  for  themselves  whether  they  will  take  back 
the  property  or  not,  6  Ves.  627 ;  so  that  in  such  a  case  the  trustee  can  never 
be  allowed  to  retain  an  advantage,  but  may  suffer  a  loss.  Lister  v.  Lister y. 
6  Ves.  631. 

This  doctrine  is  not  confined  to  trustees,  but  extends  to  assignees  under 
commissions  of  bankrupt,  solicitors,  agents,  and  in  short  all  persons  having; 
a  confidential  character.  Ex  parte  Laceij,  6  Ves.  625  ;  Ex  parte  Hughes  and 
Ex  parte  Lyon,  ib.  617  ;  Ex  parte  Aituood  and  Oiien  v.  Foufkes,  cited  ib.  630, 
note  b;  Ex  parte  James,  8  Ves.  337.  See  JWEnzie  v.  York  Buildings  Com- 
pany, Dom.  Proc.  cited  6  Ves.  630.  The  principle  being  as  above,  it  seems 
that  the  sale  being  by  auction  makes  no  difference.  See  8  Ves.  348 ;  Nel' 
thorpe  V.  Pennymun,  14  Ves.  517.''     Belt's  Supp.  10,  11. 


L*385]  *PoRTER  y.  Brackenridge. 

Pleading — Duplicity. — Debt  against  the  administrator  of  A.  on  a  joint 
and  several  bond  executed  by  A.  and  B.  to  the  plaintiff,  conditioned  for 
the  performance  of  covenants.  Plea,  that  the  intestate  was  only  a  surety ; 
that  the  plaintiff  had  agreed  with  B.,  without  (he  defendant's  knowledge, 
to  take  a  judgment  by  confession  against  B.  for  275  dollars,  in  a  suit  on 
the  bond  then  pending  again.st  him,  it  being  a  less  sum  than  the  plaintiflf' 
pretended  he  could  recover ;  and  to  take  a  judgment  against  the  present 
defendant  for  the  costs  of  an  action  then  pending  against  him  on  the 
bond  ;  that  judgments  had  been  rendered  conformably  to  this  agreement. 
Held,  that  this  plea  was  not  double ;  and  that  it  was  a  good  bar  to  the 
action. 

Same. — A  plea,  to  be  objectionable  for  duplicity,  must  contain  more  than 
one  valid  defence  to  the  suit  («). 

(a)  See  4  Ind.  409. 

(453) 


685-386   SUPREME  COURT  OF  INDIANA. 

Porter  i:  Brackenridge. 

ERROR  to  the  Franklin  Circuit  Court.— Debt  by 
Porter  against  Brackenridge,  administrator.  Special  plea 
in  bar.  Demurrer  to  the  plea,  and  judgment  for  the  de- 
fendant. 

Blackford,  J. — Tliis  was  an  action  of  debt  on  a  joint 
and  several  bond  in  the  penal  sum  of  1,000  dollars,  exe- 
cuted by  one  Van  Camp  and  the  defendant's  intestate, 
and  conditioned  for  Van  Camp's  making  a  title  to  the 
plaintiff  for  a  certain  tract  of  land.  The  defendant  pleaded 
two  pleas.  To  the  first  plea  the  plaintiff  replied,  and  ob- 
tained judgment  on  demurrer  to  his  replication.  Any 
further  notice  of  that  plea  is  therefore  unnecessar}'.  The 
second  plea  states  that  the  intestate  was  only  a  surety  in 
the  bond;  that  the  plaintiff  had  agreed  with  Van  Camp, 
without  the  defendant's  knowledge,  to  take  a  judgment 
by  confession  against  Van  Camp  for  275  dollars,  in  a  suit 
on  the  bond  then  pending  against  him,  it  being  a  less  sum 
than  he  pretended  he  could  recover;  and  to  take  a  judg- 
ment against  the  defendant  for  the  costs  of  an  action  then 
pending  against  him  on  the  bond.  The  plea  further  states, 
that  judgments  were  entered  in  accordance  with  that 
agreement.  To  this  plea,  the  plaintiff  demurred  specially. 
The  plea  is  alleged  to  be  double.  Its  duplicity  is  said  to 
consist  in  its  showing,  1st,  that  the  defendant's  intestate 
was  a  surety,  and  that  the  plaintiff  entered  into  an  agree- 
ment with  the  principal  which  legally  discharged  him; 
2dly,  that  there  was  a  former  recovery  against  the  defend- 
ant by  the  plaintiff  for  the  same  cause  of  action.  It  is  also 
alleged,  that  the  plea  is  defective  because  thQ 
[*386]  ^agreement  to  take  the  judgment  against  Van 
Camp,  and  the  actual  taking  of  it.  is  no  defence. 

The  causes  of  demurrer  must  be  considered  together. 
The  part  of  the  plea  to  which  the  last  objection  applies  is 
no  bar  of  itself.  If  it  were,  the  plea  would  be  double.  The 
objection  for. duplicity  depends  on  the  question,  whether 
the  plea  contains  more  than  one  valid  defence  to  the 
suit.     Stevens  on  Pleading,  272.     That  is  not  the  case 

(454) 


NOVEMBER  TERM,  1830.  386 

Porter  v.  Brackenridge. 

here.  The  agreement  of  itself  is  no  defence;  nor  is  the 
agreement  with  the  judgment  against  Van  Camp,  without 
a  stay  of  execution,  &uy  bar — whatever  it  might  have 
been,  had  execution  been  stayed.  It  is  tlie  agreement,  the 
entry  of  the  judgment  against  Van  Camp,  and  the  entry 
of  the  judgment  against  Brackenridge,  taken  togetlier  as 
one  defence,  that  are  relied  on  in  order  to  make  out  a 
valid  plea  of  former  recovery  against  Brackenridge,  for 
the  same  cause  of  action  with  the  present  one.  ^o  one  of 
the  facts  is  of  itself  a  sufficient  bar;  but  all  of  them  united 
form  one  connected  plea,  which  shows,  'prima  facie,  that 
there  had  previousl}^  been  an  adjudication  on  the  merits 
of  the  cause,  both  against  Van  Camp  and  the  defendant. 
If  the  merits  of  the  cause  of  action,  in  this  case,  were 
really  not  adjudicated  on  and  determined  by  the  former 
suit,  the  plaintiff  might  have  replied  that  fact.  The  plea 
is  valid,  and  the  judgment  of  the  Circuit  Court  correct. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Smith  and  Hariden,  for  the  plaintiff. 

M' Kinney ^  ior  the  defendant. 


END  OF  NOVEMBER  TEEM,  1830. 


(455) 


[*387]  *  CASES 

ARGUED  AND  DETERMINED  'r 

I 

IN   THE 

SUPREME  COURT  OF  JUDICATURE 

OF  THE 

STATE  OF  INDIANA, 


AT   INDIANAPOLIS,    MAY    TERM,    1831,    IN    THE    FIFTEENTH    YEAB   OF 
THE  STATE, 


MEMORANDA. 

THE  constitutional  term  for  which  the  Judges  of  the 
Supreme  Court  were  commissioned  expired  during  the 
preceding  vacation. 

In  the  same  vacation,  Stepiien  C.  Stevens  and  John  T. 
M'Kinney,  Esquires,  were  appointed  Judges,  in  the  place 
of  James  Scott  and  Jesse  L.  Holmau,  Esquires.  And,  at 
the  same  time,  Isaac  Blackford,  Esquire,  "W' as  reappointed 
one  of  the  Judges  of  the  Court. 

The  commissions  of  the  present  Judges  bear  date  on 
the  28th  day  of  January,  1831. 


Evans  and  Others  v.  The  State. 

Official  Bond — Breach  of — Pleading. — Debt  against  A.  on  a  penal 
bond  payable  to  the  state.  The  condition  of  the  bond  was,  that  A.  should 
well  and  truly  discharge  the  duties  of  collector  of  the  state  and  county 
revenue  of  Owen  county  for  the  year  1829.  and  pay  over  the  same  as  by 

(456) 


MAY  TERM,  1831.  387-388 

Evans  and  Others  r.  The  State. 

law  required.     The  declaration,  after  setting  out  the  bond  and  condition, 

averred  that  A.  had  not  paid  over  the  taxes  assessed  on  the  county 

*388]     of  Owen  to  the  county  *treasurer,  nor  accounted  for  the  same  to  the 

said  treasurer,  in  the  manner  prescribed  by  law.     Held,  on  special 

demurrer,  that  the  declaration  was  insuflBcient  (a). 

ERROR  to  the  Owen  Circuit  Court. 

Stevens,  J. — This  was  au  action  of  debt  brought  by  the 
defendant  in  error,  in  the  Owen  Circuit  Court,  on  the  re- 
lation of  Samuel  Howe,  the  treasurer  of  said  county  of 
Owen,  agaiust  the  plaintiffs  in  error,  on  a  bond  for  20,000 
dollars  payable  to  the  state  of  Indiana,  bearing  date  the 
19th  day  of  June,  1829,  conditioned  that  the  said  Andrew 
Evans,  Jun.,  "  should  well  and  truly  discharge  the  duties 
of  collector  of  the  state  and  county  revenue  of  the  county 
of  Owen  aforesaid  for  the  year  1829,  and  pay  over  the 
same  as  by  law  required.''  The  declaration  sets  out  the 
bond  and  condition,  and  then  avers  "that  the  said  An- 
drew Evans,  Jun.,  wholly  failed  and  neglected  to  discharge 
his  duty  as  such  collector,  and  more  especially  in  this,  to 
wit,  that  the  said  Andrew  Evans  has  wholly  failed  and 
neglected  to  pay  over  the  taxes  assessed  on  his  county  of 
Owen  to  the  treasurer  of  said  county,  or  to  account  there- 
for to  said  treasurer  in  the  manner  prescribed  by  law." 
These  are  all  the  substantive  breaches  assigned.  The  de- 
fendants demurred  to  the  declaration  and  set  down  as 
causes  of  demurrer,  1st,  "  that  it  does  not  appear  by  said 
declaration  that  the  assessment  roll  for  the  year  1829  was 
delivered  by  the  clerk  to  the  said  Andrew  Evans,  Jun. ; 
2d,  the  declaration  does  not  show  the  amount  of  taxes 
collected  by  said  Andrew  Evans;  and,  3d,  there  is  no  aver- 
ment that  any  precept  was  ever  delivered  to  the  said  An- 
drew Evans,  commanding  him  to  collect  the  taxes  for  the 
year  1829."  The  demurrer  was  overruled  and  judgment 
rendered  for  the  plaintiff;  and  the  question  now  is, 
whether  the  Court  erred  in  overruling  the  demurrer  and 

(a)  6  Blkf.  173 ;  8  Id.  527. 

(457) 


388-389   SUPREME  COURT  OF  INDIANA. 

Evans  and  Others  v.  The  State. 

rendering  judgment  against  the  defendants  in  favor  of 
the  plaintift". 

The  bond  dechxred  on  is  a  penal  bond,  conditioned  for 
the  performance  of  the  duties  of  a  collector  of  state  and 
county  revenue.  There  is  no  original  debt  due  from  the 
obligors  to  the  obligee,  and  the  obligee  could  have  no 
right  of  action,  legally,  until  the  collector  failed  to  dis- 
charge his  duties  as  such  collector.  Collectors  of  revenue 
have  no  duties  to  perform  until  there  is  an  assessment  of 
taxes    made,    and    the    assessment    rolls    corrected,    ap- 

proved,  and  filed  in  the  office  of  the  clerk  of  the 
[*389]    ^Circuit  Court  of  the  proper  county,  and  a  true 

transcript  of  such  assessment  roll  delivered  by  the 
clerk  to  the  collector,  together  with  a  precept  in  the  name 
of  the  state  of  Indiana,  under  the  seal  of  the  Circuit  Court, 
commanding  the  collector  to  collect  the  taxes  set  forth  in 
the  copy  of  the  assessment  rolls  so  delivered  to  him.  R. 
C.  1824,  p.  342,  sec.  10,  11 ;  Stat.  1825,  p.  68,  sec.  15,  16. 

To  entitle  the  plaintift'  in  this  case  to  recover  a  final 
judgment  and  execution,  it  was  necessary  that  he  should 
spread  upon  the  record,  by  legal  averments,  an  assign- 
ment of  breaches  showing  that  the  collector,  Andrew 
Evans,  had  failed  to  perform  his  duties  as  such  collector, 
and  that  thereby  damages  had  been  sustained.  There  are 
two  modes  by  either  of  which  this  could  have  been  done. 
The  bond  could  have  been  declared  on  as  a  common  bond, 
and  the  breaches  assigned  in  the  replication  to  the  defend- 
ant's plea,  if  they  had  pleaded,  setting  out  the  condition; 
if  they  had  not  so  pleaded,  the  breaches  could  have  been 
assigned  upon  the  record ;  or  the  bond  and  condition 
could  have  been  set  out,  andthe  breaches  assigned  in  the' 
declaration.  Gainsford  v.  Griffith,  1  Saund.  58,  n.  1; 
Ethersey  v.  Jackson,  8  T.  R.  255 ;  Homfray  v.  Bigby,  5  M. 
&  S.  60 ;  De  La  Rue  v.  Stewart,  2  New  Rep.  362 ;  1  Blackf. 
Rep.  Appendix,  437.  The  plaintiff  has  elected  the  latter 
mode,  and  has  assigned  two  breaches  only.  First,  '-that 
the  said  Andrew  Evans,  jun.,  has  wholly  failed  and  neg- 

(458) 


MAY  TERM,  1831.  389-390 


Evans  and  Others  v.  The  State. 


lected  to  discharge  his  duty  as  such  collector."  This  breach 
is  insufficient,  being  vague  and  general  without  specifying 
how  or  in  what  manner  he  neglected  and  failed.  Shum  v. 
FarringtoUy  1  Bos.  &  Pul.  940 ;  Cornwallis  v.  Sai:ery,  2  Bur- 
row, 772  ;  Cheshire  Bank  v.  Bobinsoh,  2  New  Hamp.  Rep. 
126.  The  other  breach  is,  "  that  the  said  Andrew  Evans 
lias  wholly  neglected  and  failed  to  pay  over  the  taxes  as- 
sessed on  his  said  county."  This  breach  is  also  insufficient, 
standing  alone  as  it  does,  unsupported  by  other  necessary 
averments.  The  averment  may  be  true  and  yet  the 
plaintiff  not  legally  entitled  to  recover.  It  must  appear  by 
proper  averments,  that  there  was  an  assessment  of  taxes 
for  county  purposes  on  the  county  of  Owen  for  the  year 
1829 ;  and  that  there  were  assessment  rolls  of  said  taxes 
made,  corrected,  approved,  and  filed  in  the  office  of  the 
clerk  of  the  Circuit  Court  of  the  county  ;  and  that 
[*390]  a  true  copy  thereof  had  been  delivered  by  *the 
clerk  to  the  collector,  together  with  a  precept 
commanding  him  to  collect  the  taxes  according  to  law. 

Per  Curiam. — The  judgment  is  reversed.  Cause  re- 
manded to  the  Circuit  Court,  with  directions  to  permit  the 
plaintiff"  below  to  withdraw  the  joinder  in  demurrer,  and 
amend  the  declaration. 

Hester,  for  the  plaintiffs. 

Naylor,  for  the  defendant. 


END  OF  MAY  TERM,  1831. 


(459) 


[*39i]  *  CASES 

ARGUED  AND  DETERMINED 

IN  THE 

SUPREME  COURT  OF  JUDICATURE 


STATE  OF  INDIANA, 


AT    INDIANAPOLIS,    NOVEMBER    TERM,    1831,   IN    THE  SIXTEENTH  YEAR    OP 

THE  STATE. 


Arnold  and  Others,  v.  Styles  and  Others. 

Keview  of  Judgment — Kealty — Venue. — A  bill  in  chancery  was  filed  in 
the  Union  Circuit  Court,  to  revive  a  decree  of  the  Franklin  Circuit  Court 
in  favor  of  the  complainant's  ancestor,  respecting  land  situate,  at  the  time 
of  the  decree,  in  Franklin  County.  When  the  bill  of  revivor  was  filed, 
the  land,  in  consequence  of  a  change  of  county  boundaries,  lay  in  Union 
county.  Held,  that  the  bill  of  revivor  should  have  been  filed  in  the 
Franklin  Circuit  Court ;  the  Union  Circuit  Court  having  no  jurisdiction 
of  the  cause. 

The  merits  of  the  decree  can  not  be  disputed  by  an  answer  to  the  bill  of  re- 
vivor. 

Practice — Demurrer. — The  mode  of  objecting  to  an  answer  as  insufficient, 
is  not  by  demurring,  but  by  filing  exceptions. 

ERROR  to  the  Union  Circuit  Court. 

M'KiNNEY,  J. — The  hill  is  tiled  in  the  Union  Circuit 
Court  by  the  heirs  of  Elizabeth  Styles,  to  revive  a  decree 
which  had  been  rendered  in  the  Franklin  Circuit  Court, 
in  favor  of  Elizabeth  Styles  against  the  heirs  of  Bird 
Styles. 

The  complainants  show  the  proceedings    had    in    the 

(460) 


NOVEMBER  TERM,  1831.  391-392 

Arnold  and  Others  r.  Styles  and  Others. 

Franklin  Circuit  Court,  on  a  bill  filed  in  1818  by  Elizabeth 
Styles  against  the  heirs  of  Bird  Styles;  refer  to  and  make 
the  bill,  exhibit,  and  decree  in  that  cause,  a  part  of  their 
bill;  and  charge  that  the  tract  of  land,  the  subject  of  lit- 
igation in  that  suit  and  then  within  the  bounds  of 
[*392]  Franklin  county,  is  at  present  within  those  *of 
Union  county;  that  the  complainants  are  resi- 
dents of  the  same  county ;  that  Elizabeth  Styles  died  be- 
fore the  decree,  or  any  part  of  it,  was  executed ;  that  they 
are  her  legal  heirs ;  and  pray  that  the  defendants  may  ap- 
pear and  show  cause,  if  any  they  have,  why  the  decree  and 
other  proceedings,  abated  as  charged,  should  not  be  re- 
vived, and  put  in  the  same  condition,  &c.  The  defend- 
ants by  their  guardian  answer  as  follows:  that  they  are 
strangers  to  the  proceedings  had  in  the  Franklin  Circuit 
Court;  that  they  are  informed  and  believe  that  the  pro- 
ceedings are  inoperative ;  that  they  then  were  and  still  are 
infants,  and  were  without  a  guardian  in  that  Court;  that 
they  believe  that  Elizabeth  Styles  had  no  other  than  a  life 
estate  in  the  premises;  that  the  allegations  in  the  bill, 
setting  up  a  claim  to  the  moiety  of  the  land  therein  men- 
tioned, were  without  foundation,  and  the  proceedings  a 
fraudulent  attempt  to  take  advantage  of  their  youth  and 
inexperience.  They  ask  that  the  complainants  be  com- 
pelled to  make  strict  proof  of  the  allegations  in  the  bill 
of  Elizabeth  St3des.  To  the  answer  the  complainants  de- 
murred; the  defendants  joined  in  demurrer;  and  judg- 
ment was  rendered  in  favor  of  the  defendants,  dismissing 
the  bill  with  costs. 

Bills  of  revivor  are  embraced  in  the  class  of  "  Bills  not 
original,"  and  are  either  an  addition  to  or  a  continuance  of 
an  original  bill,  or  both.  Mitf.  PI.  31.  The  suit  in  the 
Franklin  Circuit  Court  abated  by  the  death  of  the  com- 
plainant. If  the  decree  was  not  executed  before  her 
death,  as  charged  by  the  bill,  her  representatives,  claim- 
ing an  interest  under  it,  arc  properly  complainants  to  a 
bill  of  revivor.     Formerly,  when  a  suit  abated    after  a 

(461) 


392-393    SUPREME  COURT  OF  INDIANA. 

Arnold  and  Others  v.  Styles  and  Others. 

decree  signed  and  enrolled,  the  decree  was  revived  by 
scire  facias.  That  practice  has,  however,  yielded  to  the 
more  ample  relief  afforded  by  the  bill  of  revivor.  By 
this  bill,  matter  not  litigated  by  the  original  parties  can 
not  be  introduced  after  a  decree.  The  bill  merely  con- 
tinues the  original  suit  and  enables  its  prosecution  by 
those  whose  interests  have  attached  by  the  abatement. 
If  the  decree  of  the  Franklin  Circuit  Court  has  not  been 
executed,  upon  its  revival,  the  representatives  of  the  com- 
plainant, as  regards  the  question  of  enforcement,  or  act 
to  be  done,  occupy  the  same  ground  that  the  complainant 
herself  would  have  done.     It  is  well  settled  that  when 

the  jurisdiction  of  a  Court  of  chancery  attaches, 
[*393]    it  is  ^retained  until  it  fully  acts  upon  the  subject 

before    it.     Rathhone  v.  Warren,  10   Johns.    Rep. 
587;  1  Madd.  Ch.  28. 

The  complainants  contend,  that  although  in  England  a 
revival  must  have  been  in  the  Court  in  which  the  original 
proceedings  were  had,  yet  in  this  state  it  is  different.  We 
can  not  perceive  a  distinction.  The  necessity  to  revive 
in  the  same  Court  in  England,  it  is  believed,  results  nut 
from  the  fact,  as  is  supposed,  that  there  is  but  one  Court 
of  Chancery,  whose  jurisdiction  embraces  the  whole  king- 
dom, but  because  the  records  remain  in  the  Court  in  which 
they  originate,  and  from  the  confusion  that  would  arise 
if  the  same  subject  were  litigated,  by  the  same  parties,  at 
the  same  time  and  in  different  Courts.  The  principle 
equally  applies  to  Courts  of  common  law.  A  scire  facias 
to  revive  a  suit  or  a  judgment  can  only  issue  from  the 
Court  in  which  the  suit  was  brought,  or  the  judgment 
rendered;  because  in  such  Court  is  the  record.  Bingh." 
on  Judg.  127;  2  Arch.  Prac.  98.  .  If  bills  of  revivor,  thus 
brought,  were  sustained,  bills  of  review,  bills  to  impeach 
a  decree  for  fraud,  and  the  various  modifications  of  bills 
not  original,  would  rest  on  the  same  principle;  and  in- 
stead of  that  unity  of  proceeding,  so  favorable  to  the  ends 
of  justice,  the  greatest  confusion  would  inevitably  ensue. 

(162) 


XOA^EMBER  TERM,  1831.  393-394 

Arnold  and  Others  v.  Styles  and  Others. 

The  complainants  further  contend,  that  as  the  land  is  now 
in  the  county  of  Union,  and  the  parties  reside  in  it,  juris- 
diction attaches  to  its  Circuit  Court.  A  Court  of  chan- 
cery acts  in  personam  or  in  rem.  It  is  immaterial  by  which 
it  gains  jurisdiction;  once  exercised,  neither  a  change  of 
county  boundaries,  nor  a  change  of  the  residence  of  a 
party  litigant,  can  arrest  the  prosecution  of  a  suit.  The 
Court  has  always  jurisdiction  to  carry  its  own  decrees 
into  execution.  It  therefore  follows,  that  if  the  decree 
of  the  Franklin  Circuit  Court  be  revived,  it  must  be  done 
in  that  Court. 

The  answer  is  clearly  insufficient.  The  bill  is  to  revive 
a  decree.  The  decree,  until  reversed,  is  conclusive.  It 
can  not  collaterally  be  questioned.  If  the  decree  was  ob- 
tained by  fraud,  it  may  be  impeached  on  that  ground. 
This  is  done  by  a  bill.  The  defendant  by  an  answer  to  a 
bill  of  revivor  can  not  question  the  justice  of  the  decree. 
2  Madd.  Ch.  403.  The  answer  then  was  not  a  response 
to  the  bill.  "When  an  insufficient  answer  is  filed  (exclu- 
sive of  its  reference  for  impertinence  or  scandal), 
[=^394]  there  is  but  one  mode  of  objecting  to  it;  "^that  is, 
by  taking  exceptions.  Mitf.  PL  250.  The  com- 
plainants, however,  have  demurred  to  the  answer,  and  as 
causes  of  demurrer  state,  1st,  that  the  answer  sets  up  no 
matter  of  defeuoe  that  amounts  to  a  bar  to  the  relief 
sought  by  the  bill;  2d,  that  there  is  no  matter  set  up  by 
the  said  answer  that  requires  a  replication  thereto.  These 
causes  of  demurrer  may  perhaps  be  regarded  as  excep- 
tions taken  to  the  answer.  This  would  accord  with  the 
liberal  practice  of  a  Court  of  chancery.  Exceptions  are 
required  to  be  specific.  These  causes  of  demurrer  are 
general.  "Whether  they  are  sufficient  to  require  a  better 
answer,  it  is  thought  unnecessary  to  decide.  There  is  an 
obvious  want  of  jurisdiction  in  the  Union  Circuit  Court. 
For  this  reason,  the  judgment  must  be  affirmed. 

Per  Curiam. — The  decree  is  affirmed  with  costs.     To  be 
certified,  &c. 

(463) 


394-395    SUPREME  COURT  OF  INDIANA. 


Pugh  V.  Bussel. 


Perry,  for  the  plaintiffs. 
Rariden,  for  the  defendants. 


Pugh  v.  Bussel. 


Insolvency — Discharge  in  Foreign  State. — A.,  having  become  indebted 

to  B.  in  the  state  of  Ohio  where  they  both  resided,  gave  his  note  to  B.  for 

'  the  debt  dated  in  1821.     In  1823,  the  parties  being  still  residents  in  Ohio, 

A.  took  the  benefit  of  the  insolvent  law  of  that  state,  and  was  discharged, 
so  far  as  respected  arrest  and  imprisonment,  from  all  his  debts,  that  of' 

B.  among  the  rest.  Afterwards,  A.  removed  to  this  state ;  and,  to  an  ac- 
tion against  him  on  the  note,  brought  by  C,  the  assignee  of  B.,  he  pleaded 
— in  discharge  of  his  j^erson  from  arrest  or  imprisonment  for  the  debt — 
his  above-mentioned  discharge  in  Ohio.  Held,  on  general  demurrer,  that 
the  plea  was  good  (a). 

Bankruptcy — State  Rigwits. — Until  congress  exercise  the  right  of  passing 
uniform  laws  on  the  subject  of  bankruptcy,  any  state  may  enact  a  bank- 
rupt law  not  impairing  the  obligation  of  contracts. 

Same — Retroactive. — A  state  law  merely  discharging  the  person  of  the 
debtor  from  imprisonment,  not  his  after-acquired  property,  for  debts  con- 
tracted in  the  state  between  its  citizens,  is  constitutional,  whether  the 
debt  was  contracted  before  or  after  the  passage  of  the  law.  But  if  the 
law  discharge  the  debtor's  after-acquired  property  as  well  as  the  person, 
a  discharge  under  it  is  not  valid,  unless  the  creditor  make  himself  a 
party  to  the  proceedings  which  lead  to  the  discharge. 

Same — State  Law — Effect  in  Foreign  State. — A  discbarge,  by  a  state 
law,  has  no  operation  out  of  the  state  over  contrffcts  not  made  and  to  be 
carried  into  effect  witHin  the  state ;  nor  over  the  citizens  of  other  states, 
who  do  not  make  themselves  parties  to  the  proceedings  under  the  law. 

Same. — A  discharge  under  an  insolvent  law,  of  the  person  and  not  of  after- 
acquired  property,  may  be  pleaded  in  discharge  of  the  person  from 

[■395]  imprisonment;  and  the  ■■■judgment  for  the  plaintiff,  if  the  plea  be 
supported,  is,  that  he  recover  his  debt,  &c.,  to  be  levied  not  on  the 
person  of  the  defendant,  but  only  on  his  property. 

ERROR  to  the  Rash  Circuit  Court. — This  cause  was 
submitted  to  the  Court  at  the  Nov,  term,  1830,  when  the 
judgmeut  of  the  Circuit  Court  was  reversed.  A'^ide  the 
opinion,    aute,    p.    366.      A   re-hearing    was    afterwards 

(a)  Infra  366, 

(464) 


NOVEMBER  TERM,  1831.  395 

Pugh  V.  Bussel. 

granted;  and,  at  the  present  term,  the  following  opinion 
in  the  cause  was  delivered. 

Stevens,  J. — This  is  an  action  of  debt  brought  by  Bus- 
sel against  Pugh,  in  the  Rush  Circuit  Court,  on  a  note 
made  by  Pugh  on  the  1 1th  day  of  August,  1821,  to  one  John 
Jackson,  and  by  Jackson  transferred  by  assignment  in 
writing,  on  the  16th  day  of  December,  1829,  to  Bussel. 
Pugh  pleads,  in  discharge  of  his  body  from  imprisonment 
or  arrest  for  said  debt,  a  discharge  obtained  by  him  in  the 
county  of  Hamilton  and  state  of  Ohio,  by  the  Court  of 
Common  Pleas  of  that  county  under  the  insolvent  laws 
of  that  state,  on  the  18th  day  of  August,  1823.  The  plea 
avers  the  filing  of  his  petition  and  schedule  of  debts ;  the 
appointment  of  trustees,  and  the  surrender  of  his  effects 
to  the  trustees  according  to  law;  and  that  the  trustees 
gave  bond  and  took  upon  themselves  the  office  of  trustees 
according  to  law;  and  that  such  proceedings  were  duly 
and  legally  had  upon  such  petition  and  schedule,  that  the 
Court  of  Common  Pleas  on  the  18th  day  of  August,  1823, 
ordered  and  adjudged  "that  the  person  of  the  said  peti- 
tioner be  henceforth  privileged  from  imprisonment,  for 
any  debt  due  and  owing  by  him  at  the  time  of  filing  his 
petition."  The  plea  further  avers  that  his  discharge  still 
remains  of  record  in  said  Court  of  Common  Pleas  unre- 
versed and  in  full  force;  and  makes  the  proper  reference 
to  the  record;  and  states  that  the  said  discharge  took 
place  after  the  note  in  question  was  made,  and  after  it 
became  due  and  payable,  and  long  before  Jackson  had 
sold  or  transferred  it  to  Bussel.  The  plea  further  avers 
that,  at  the  time  the  debt  was  contracted  and  the  note 
given,  and  at  the  time  of  the  discharge,  he  and  Jackson 
were  both  citizens  of  and  resided  in  the  county  of  Ham- 
ilton, and  state  of  Ohio;  and  that  the  debt  was  contracted 
and  the  note  made  and  delivered  to  Jackson  there.  The 
plea  further  avers  that  his  body  was  discharged  from  im- 
prisonment under  or  by  virtue  of  the  note  or  claim  of 
Jackson ;  and  that  Jackson,  as  one  of  his  creditors,  be- 
Voi.  II.— 30  (465) 


395-396    SUPREME  COURT  OF  INDIANA. 

ir'ugh  V.  Bussel. 

came  and  was  entitled  to  his  distributive  share  of 
[*396]  the  estate  so  assigned  to  the  trustees.  *The  plea 
is  demurred  to  and  the  demurrer  sustained  bj*  the 
Court;  and  thereby  several  questions  are  raised. 

The  first  point  is,  are  those  insolvent  state  laws  repug- 
nant to  that  part  of  the  federal  constitution  which  vests 
exclusively  in  congress  the  power  of  establishing  uniform 
laws  on  the  subject  of  bankruptcy  throughout  the  United 
States? 

The  provisions  of  the  constitution  which  have  a  bear- 
ing on  this  point  have  been  by  a  celebrated  and  learned 
jurist  collated,  and  read  thus:  "Congress  shall  have 
power  to  coin  money,  regulate  the  value  thereof  and  of 
foreign  coin;  but  no  state  shall  coin  money,  emit  bills  of 
credit,  or  make  anything  but  gold  and  silver  coin  a 
tender  in  payment  of  debts,  or  pass  any  law  impairing 
the  obligation  of  contracts,  but  congress  may  establish 
uniform  laws  on  the  subject  of  bankruptcies."  By  this 
collation  and  transposition  it  is  at  once  seen  that  the  con- 
stitution has  left  nothing  unfinished.  It  prohibits  the 
states  from  impairing  the  obligation  of  contracts,  and 
provides  a  uniform  medium  for  the  payment  of  debts, 
and  expressly  prohibits  the  states  from  interfering  with 
that  medium.  It  also  provides  a  uniform  manner  of  dis- 
charging debts  without  payment,  when  congress  shall 
deem  it  expedient  to  legislate  on  the  subject.  The  states 
are  not  excluded  from  any  power  antecedently  possessed 
by  them,  except  in  three  cases:  1,  when  a  power  is 
granted  to  congress  in  exclusive  terms;  2,  when  the  states 
are  expressly  prohibited  from  exercising  it,  in  express 
terms  and  in  a  specific  form  ;  8,  where  a  power  is  granted 
to  congress,  the  cotemporaneous  exercise  of  which  by  the 
states  would  be  incompatible.  The  point  now  under  con- 
sideration does  not  fall  under  either  of  those  heads.  The 
power  of  congress  to  establish  "  uniform  laws  on  the  sub- 
ject of  bankruptcy,"  as  given  b}^  the  constitution,  is  not 
exclusive  of  the  states  on  the  same  subject,  and  until  con- 

(466) 


NOVEMBER  TERM,  1831.  396-397 

Pugli  V.  Bussel. 

gress  exercises  that  right,  the  states  may  constitutionally 
pass  such  laws,  if  they  do  not  impair  the  obligation  of 
contracts.  And  even  if  congress  had  exercised  that  right, 
the  right  of  the  states  is  not  thereby  extinguished,  but 
only  suspended  so  far  as  the  two  laws  might  conflict.  It 
is  said  in  the  case  of  Ogden  v.  Saunders,  12  Wheaton,  369, 
that  the  fair  exercise  of  that  power  by  the  states,  does 
not  necessarily  involve  a  violation  of  the  obligation  of  con- 
tracts, unless  they  pass  beyond  their  own  limits  and 
the  rights  of  their  own  citizens,  and  act  upon 
[*397]  *the  rights  of  the  citizens  of  other  states,  and  come 
in  collision  with  the  judicial  power  granted  to  the 
United  States,  and  thereby  render  their  acts  incompati- 
ble with  the  rights  of  the  other  states,  and  with  the  con- 
stitution of  the  United  States.  From  this  view"  of  the  case, 
it  is  clearly  demonstrated  that  those  laws  are  not  neces- 
sarily repugnant  to  that  part  of  the  constitution,  vesting 
in  congress  the  exclusive  power  to  establish  uniform  laws 
on  the  subject  of  bankruptcy. 

The  second  point  is,  do  those  laws  "impair  the  obliga- 
tion of  contracts,"  the  power  of  passing  which  is  expressly 
vested  in  congress? 

The  obligation  of  a  contract  is  the  law  which  binds  the 
parties  to  perform  their  agreement.  The  Institutes  and 
Pothier  both  call  the  obligation  of  a  contract  "  the  chain 
of  the  law."  That  law  is  the  municipal  law  of  the  state 
where  the  contract  is  made,  or  where  it  is  to  be  per- 
formed ;  and  must  govern  it  throughout  whenever  its 
performance  is  sought  to  be  enforced.  Lord  Mansfield 
says,  the  general  rule  established  by  comity  and  the  laws 
of  nations,  is,  that  the  lex  loci  forms  a  part  of  the  contract, 
and  travels  with  it  wherever  the  parties  to  it  may  be 
found,  and  is  to  be  considered  in  expounding  and  enforce- 
ing  it,  unless  the  parties  have  otherwise  agreed;  as  where 
it  is  to  be  executed  in  another  state  or  country;  in  which 
case  it  is  to  be  governed  by  the  laws  of  the  place  where  it 
is  to  be  executed.     1  H.  Black.  584;  2  Burr.  1078  ;  Stra. 

(467) 


397-398    SUPREME  COURT  OF  INDIANA. 

Piigh  V.  Bussel. 

733;  Black.  Rep.  234,  258;  Dallas,  360;  1  Gallison,  169, 
Mather  v.  Bush,  15  Johns.  Rep.  233,  249.  It  is  now  a 
settled  doctrine  in  all  Courts,  that  the  discharge  of  an  in- 
solvent from  arrest  and  imprisonment  only,  is  an  infringe- 
ment of  the  obligation  of  the  contract.  The  imprisonment 
of  the  person  of  the  debtor  is  no  part  of  the  law  of  the 
contract,  but  is  simply  a  means  of  coercion  :  hence,  those 
laws  that  only  release  the  body  of  the  insolvent  from 
arrest  and  imprisonment  are  constitutional  and  valid. 
And  it  is  also  equally  well  settled,  that  a  discharge  of  the 
insolvent's  after-acquired  property,  is  an  infringment  of 
the  obligation  of  the  contract,  and  those  state  laws  which 
release  not  only  the  body  of  the  insolvent,  but  also  his 
after-acquired  property,  are  law^  impairing  the  obligation 
of  contracts,  and  are  unconstitutional  and  void. 

In  the  case  of  Baker  v.  Wheaton,  5  Mass.  Rep. 
[*398]  509;  Smith  v.  "^ Parsons,  1  Ohio  Rep.  236;  Smith  v. 
Smith,  2  Johns.  Rep.  241;  it  is  held  that  if  the 
contract  be  made  in  the  state  where  the  discharge  is  had, 
between  citizens  of  the  state  at  the  time  of  making  the 
contract,  it  is  good  in  all  places  against  the  citizens  of  that 
state  and  in  all  countries,  because  the  laws  of  the  state 
form  a  part  of  the  contract,  and  the  parties  being  citizens 
thereof,  are  bound  by  the  laws,  they  having  assented 
thereto  as  a  part  of  the  body  politic.  Again,  in  the  cases 
o^  Mather  V.  Bush,  16  Johns.  Rep.  233;  Blanchard  v.  Rus- 
sell, 13  Mass.  Rep.  1 ;  Hicks  v.  Hotchkiss  et  al.  7  Johns.  Ch. 
Rep.  297;  it  seems  to  be  considered  that  if  the  insolvent 
law,  under  which  the  debtor  is  discharged,  is  not  made 
and  in  force  at  the  time  of  making  the  contract,  it  forms 
no  part  of  the  contract.  It  is,  however,  now  settled  by 
the  cases  of  Sturges  v.  Crou))nnshiel(l,  4  Wheaton;  Qgrlen  v. 
Saunrfers,12  Wheaton  ;  3I\Millan  v.  M'Neill,  4  Wheaton  ; 
Mason  v.  Haile.  12  Wheaton  ;  that  a  state  law  that  dis- 
charges only  the  person  of  the  debtor  from  arrest  atid  im- 
prisoimient,  and  not  after-acquired  property,  for  debts 
contracted  in  the  state  between  its  own  citizens,  to  be  paid 

(468) 


KOVEMBER  TERM,  1831.  398-399 

Pugh  V.  Bussel. 

or  performed  in  the  state,  is  coustitutioual  aud  valid, 
whether  the  debt  was  contracted  before  or  after  the  pas- 
sage of  the  insolvent  law.  The  circumstance  of  the  act 
being  passed  before  or  after  the  contract  is  made,  makes 
no  difference.  And  in  the  case  of  Clay  v.  Smith,  3  Peters, 
411,  and  Sturges  v.  Croivninshield,  it  appears  to  be  consid- 
ered that  a  state  insolvent  law,  which  discharges  not  only 
the  person  of  the  debtor  from  imprisonment,  but  also  dis- 
charges after-acquired  property,  is  valid,  if  the  creditor 
makes  himself  a  party  to  the  proceedings  which  lead  to 
the  discharge  in  the  state  Court. 

In  surveying  this  doctrine  in  all  its  parts,  and  in  en- 
deavoring to  arrive  at  a  conclusion,  warranted  by  the 
peculiar  situation  in  which  the  several  states  stand  in  re- 
lation to  the  federal  government,  it  is  necessary  to  keep 
constantly  in  view  that  the  federal  constitution  is  the 
paramount  law  of  each  state,  and  forms  a  part  of  the  lex 
loci,  and  therefore  enters  into  and  forms  a  paramount 
part  of  every  contract,  and  is  equally  binding  and  valid 
in  every  state.  In  a  case  in  7  Johns.  Ch.  Rep.  Chancellor 
Kent  says,  that  the  lex  loci  must  be  constitutional  law,  or 
it  is  no  law  and  forms  no  part  of  the  contract ;  that  -the 
constitution  of  the  United  States  is  the  supreme  law  of  the 

land  of  all  the  states,  and  forms  a  part  of  all  con- 
[^^399]    tracts   made  in  any  part  of  the  United  *States; 

and  that  any  local  law  repugnant  to  the  constitu- 
tion can  form  no  part  of  the  same  contract.  And,  again, 
in  the  case  of  the  Farmers'  and  Mechanics'  Bank  of  Penn- 
sylcania  v.  Smith,  6  Wheaton,  131,  Judge  Marshall  says, 
that  the  circumstance  of  the  parties  being  citizens  of  the 
same  state,  and  the  insolvent  laws  having  been  made  and 
in  existence  prior  to  the  making  of  the  contract,  and  the 
discharge  having  taken  place  in  the  same  state  in  the 
Courts  thereof,  makes  no  difference  ;  that  the  constitution 
of  the  United  States  was  made  for  the  whole  people  of 
the  Union,  and  is  equally  binding  upon  all  the  Courts  and 
all  the  citizens. 

(169) 


399-400   SUPREME  COURT  OF  I:N^DIA]S'A. 

Pugh  V.  Biissel. 

The  result  of  all  the  foregoing  cases  is,  that  a  state  law 
discharging  the  person  of  the  debtor  from  imprisonment 
only,  and  not  his  after-acquired  effects,  for  debts  contracted 
in  the  state  between  its  citizens,  is  constitutional  and  valid, 
whether  the  debt  was  contracted  before  or  after  the  pas- 
sage of  the  lawo  And  that  a  state  law,  discharging  not 
only  the  person  of  the  debtor  from  imprisonment,  but  also 
discharging  his  after- acquired  propert}',  is  a  law  impair- 
ing the  obligation  of  contracts,  and  a  discharge  under  it 
is  not  valid,  unless  the  creditor  makes  himself  a  party  to 
the  proceedings  which  lead  to  the  discharge  in  the  state 
Court. 

The  third  point  is,  have  those  state  laws  any  operation 
out  of  the  state  over  contracts  not  made  and  to  be  carried 
into  effect  in  the  state  between  the  citizens  thereof;  or 
have  they  any  effect  or  operation  on  the  citizens  of  other 
states  ? 

The  Courts  in  England  maintain  the  doctrine  that  it  is 
a  rule  of  universal  obligation  that  the  assignment  of  the 
bankrupt's  effects,  under  a  law  of  the  country  of  the  con- 
tract, is  binding  everywhere.     It  is  perhaps  settled  in  that ' 
country  that  the  discharge  of  a  bankrupt  shall  be  effectual 
against  contracts  of  the  state  that  gave  the  discharge,  no 
matter  what  be  the  allegiance  or  country  of  the  creditor. 
Their  doctrine  is,  that  the  bankrupt  law  of  the  country 
is  paramount  in  disposing  of  the  rights  of  the  bankrupt. 
The  United  States  appear  to  have  established  a  different 
doctrine.     In  the  federal  as  well  as  the  state  Courts,  where 
•    such  cases  have  been  adjudicated,  it  has  been  decided  that" 
\  notwithstanding  the  bankruptcy  of  the  debtor  in  Eng- 
land, or  other  foreign  couutr3%  by  their  laws,  his  creditor 
here  may  levy  an  attachment  on  a  debt  due  to  the 
[*400]    bankrupt  in  this  ^country  and  appropriate  it  to 
his  own  use.     And  further,  our  Courts  give  the 
debts  due  to  the  bankrupt  here,  to  satisfy  a  debt  con- 
tracted in  England,  to  the  prejudice  of  the  English  law, 
which  gives  the  same  debt  to  the  assignees  of  the  bank- 

(470) 


NOVEMBER  TERM,  1831.  400 

Pugh  v.  Bussel. 

rupt.     Ogden  v.  Saunders,  12  Wheatou,  360 ;  Harrison  v. 
Sterry,  5  C ranch,  298,  302. 

In  the  case  of  M' Millan  v.  JPNeill,  4  Wheaton,  209, 
Judge  Marshall  says,  that  it  is  well  settled  that  a  discharge 
under  a  foreign  law  is  no  bar  to  an  action  on  a  contract 
made  in  this  country.  And  in  the  case  of  Buckner  v.  Fin- 
ley  andF"rt?i  Lear,  2  Peters.  590,  the  Court  says  that  "for 
all  national  purposes  embraced  by  the  federal  constitution, 
the  states  and  the  citizens  thereof  are  one,  united  under 
the  same  sovereign  authority,  and  governed  by  the  same 
laws ;  but  that  in  all  other  respects,  the  states  are  neces- 
sarily foreign  to,  and  independent  of,  each  other."  The 
same  is  said  by  the  Court  of  Appeals  in  Virginia  in  the 
case  of  Warder  V.  Arell,  2  Wash.  298,  where  the  Court  states 
the  law  as  it  respects  a  foreign  country,  and  then  adds, 
"  the  same  principle  applies  to  the  different  states  of 
America."  This  principle,  says  Judge  Baldwin,  in  the 
case  of  Woodhidl  and  Davis  \.  Wagner,  seems  directly  ap- 
plicable to  the  insolvent  laws  of  the  states.  Such  laws 
a,re  wholly  unconnected  with  the  federal  relations  of  the 
states  to  the  general  government,  where  they  do  not  im- 
pair the  obligation  of  contracts;  and  discharges  under 
them  are,  in  other  states,  to  be  considered  as  made  under 
foreign  laws  and  subject  to  the  same  rules  of  decision. 
In  the  cases  of  Watson  v.  Bourne,  10  Mass.  Rep.  337 ;  Baker 
V.  Wheaton,  5  Mass.  509;  Van  Raugh  v.  Van  Arsdaln,  3 
I^ew  York,  T.  R.  154;  Smith  v.  Smith,  2  Johns.  Rep.  241 ; 
Ogden  v,  Saunders,  12  Wheaton,  213,  it  is  settled  that  a 
discharge  of  a  debtor  undjr  n  state  insolvent  law  is  not 
valid  against  a  citizen  or  creditor  of  another  state,  they 
not  being  parties  or  assenting  to  the  laws.  And,  in  the 
cases  of  Emory  v.  Grenough,  3  Dallas,  369,  and  Proctor  v. 
Moore,  Williams'  Rep.  198,  it  is  decided  that  if  two  citi- 
zens of  the  same  state  contract  under  the  insolvent  laws 
of  the  state,  and,  after  the  contract  is  made,  one  of  them 
remove  to  another  state,  the  one  remaining  in  the  state 
where  the  contract  is  made  can  not  be  discharged  there- 

(471) 


400-401    SUPREME  COURT  OF  INDIANA 

Pugh  V  Bussel. 

from  by  the  insolvent  laws  of  the  state,  the  other  being  a 

citizen  of  another  state, 
[*401]  *These  cases,  together  with  the  cases  of  Shaw  v. 
Hobhins,  note  to  12  Wheaton,  369  ;  M'Millan  v. 
McNeill;  Ogden  v.  Saunders;  Harrison  v.  Sterry,  and  Rob- 
inson's Admr.  v.  Bank  of  Georgetown^  established  the 
doctrine  beyond  a  controvers}^,  that  a  discharge  by  a  state 
law  operates  only  on  contracts  made  in  the  state  between 
its  own  citi-zens,  which  are  to  be  executed  there;  and  that 
such  laws  have  no  operation  out  of  the  state,  over  contracts 
not  made  and  to  be  carried  into  effect  within  the  state, 
nor  over  the  citizens  of  other  states,  unless  they  volun- 
tarily make  themselves  parties  to  the  proceedings  which 
lead  to  a  discharge  in  the  state  Courts. 

The  fourth  and  last  point  made  in  the  case  is,  can  the 
debtor  when  he  has  been  constitutionally  discharged  in 
his  own  state  under  the  laws  thereof,  plead  that  dis- 
charge in  another  state  as  a  defence  in  bar  against  the 
imprisonment  of  his  body,  to  an  action  brought  on  a  debt 
from  which  he  has  been  so  discharged  ;  and  if  he  can  so 
plead  it,  what  is  the  form  of  the  judgment  to  be  rendered 
thereon  ? 

In  the  cases  of  Baker  v.  Wheaton,  Smith  v.  Parsons,  and 
Watson  v.  Bourne,  and  the  case  of  Babcock  v.  Weston,  1 
Gall.  Rep.  168,  it  is  held  to  be  a  settled  principle,  that  a 
legal  discharge  once  obtained  between  citizens  of  the  same 
state,  is  valid  and  binding  in  every  state  in  the  Union,  on 
general  principles ;  and  much  more  so  under  the  federal 
compact.  These  decisions  on  this  point  have,  we  believe, 
never  been  called  in  question.  The  Court  is  of  opinion 
that  the  discharge  now  in  question,  of  the  debtor  in  the 
state  of  Ohio,  is  valid  between  the  defendant  and- Jack- 
son, and  that  the  assignment  ot  the  note  to  Bussel  does 
not  altar  or  affect  the  case  ;  and  that  therefore  the  plea  of 
the  defendant  is  well  pleaded.  In  England,  the}' have  an 
insolvent  law  called  the  Lord's  act,  which  discharges  the 
person  of  the  debtor  from  imprisonment,  but  does  not  dis- 

(472) 


NOVEMBER  TERM,  1831.  401-402 


Pugh  v.  Bussel. 


charge  his  after- acquired  property.  Under  that  act  such 
pleas  are  common,  and  the  form  thereof  well  settled.  See 
2  Chitty's  Pleading,  356,357.  The  judgment  in  such  cases 
is,  that  the  plaintiff  recover  of  the  defendant  his  debt, 
damages,  and  costs,  to  be  levied,  not  on  the  person  of  the 
defendant,  but  on  his  goods  and  chattels,  lands  and  tene- 
ments. Bingham  on  Judgments  and  Executions,  328,329. 
Per    Curiam. — The  judgment  is   reversed  with   costs. 

Cause  remanded,  &c.  (1). 
[*402]    "^Smith,  for  the  plaintiff. 

Bariden,  for  the  defendant. 

(1)  The  subjects,  to  which  the  opinion  in  the  text  relates,  and  the  author- 
ities connected  with  tiiem,  are  very  fullv  examined  in  Kent's  Commentaries, 
2d  ed.  1  vol.  pp.  419  to  423;  2  vol.  pp."  389  to  408. 

The  language  of  Judge  Story,  as  to  the  authority  of  the  states  to  pass  in- 
solvent laws  discharging  the  obligation  of  contracts,  is  as  follows :  "  It  is 
not  doubted,  that  the  states  may  pass  insolvent  laws,  which  shall  discharge 
the  person,  or  operate  in  the  nature  of  a  cessio  bonoruin,  provided  such  laws 
do  not  discharge,  or  intermeddle  with  the  obligation  of  contracts.  Nor  is 
it  denied,  that  insolvent  laws,  which  discharge  the  obligation  of  contracts, 
made  antecedently  to  their  passage,  are  unconstitutional.  Sturges  v.  Crown- 
inshield,  4  Wheat.  R.  122 ;  Fanners  and  Mechanics^  Bank  v.  Smith,  6  Wheat. 
R.  131  ;  Ogden  v.  Saunders,  12  Wheat.  R.  213.  But  the  question  is,  how  far 
the  states  may  constitutionally  pass  insolvent  laws,  which  shall  operate 
upon  and  discharge  contracts,  which  are  made  subsequently  to  their  pas- 
sage. After  the  most  ample  argument  it  has  at  length  been  settled  by  a 
majority  of  the  Supreme  Court,  that  the  states  may  constitutionally  pass 
such  laws  operating  upon  future  contracts.  Ogden  v.  Sauuders,  12  Wheat. 
R.  P.  254  to  357."     3  Story's  Comm.  252. 

Respecting  the  contracts  to  which  such  state  insolvent  laws  can  right- 
fully apply,  the  same  distinguished  writer  says  :  "  The  result  of  the  various 
decisions  on  this  subject  is,  1.  That  they  apply  to  all  contracts  made  within 
the  state  between  citizens  of  the  state.  2.  That  they  do  not  apply  to  con- 
tracts made  within  the  state  between  a  citizen  of  a  state  and  a  citizen  of 
another  state.  3.  That  they  do  not  apply  to  contracts  not  made  within  the 
state.  In  all  these  cases  it  is  considered  that  the  state  does  not  possess  a 
jurisdiction,  co-extensive  with  the  contract,  over  the  parties  ;  and  therefore, 
that  the  constitution  of  the  United  States  protects  them  from  prospective, 
as  well  as  retrospective  legislation.  Ogden  v.  Saunders,  12  Wheat.  R.  358 ; 
M\Millan  v.  3['XeiU,  4  Wheat.  R.  209.  'Still,  however,  if  a  creditor  volun- 
tarily makes  himself  a  party  to  the  proceedings  under  an  insolvent  law  of 
a  state,  which  discharges  the  contract,  and  accepts  a  dividend  declared  un- 
der such  law,  he  will  be  bound  by  his  own  act,  and  be  deemed  to  have 
abandoned  his  extra-territorial  immunity.  Clay  v.  Smith,  3  Peters'  Rep. 
411."     3  Storv's  Comm.  256. 


(473) 


402-403     SUPREME  COURT  OF  mDIANA. 


Wilson  I.  Coles. 


Wilson  v.  Coles. 

Practice — Appearance — Waiver. — After  a  cause  had  been  continued, 
the  parties  appeared  during  the  same  term  and  proceeded  to  trial.  This 
was  held  not  to  be  erroneous.  The  proceeding  to  trial,  which  must  be 
presumed  to  have  been  by  consent,  cancelled  the  previous  order  of  con- 
tinuance (a). 

Record — Affidavit. — Neither  an  affidavit  for  a  continuance,  nor  any  ob- 
jection of  a  party  to  the  ordering  on  a  cause  for  trial,  is  any  part  of  the 
record  unless  made  so  by  a  bill  of  exceptions  (6). 

ERROR  to  the  Allen  Circuit  Court. 

Blackford,  J. — Trespass  by  Wilson  against  Coles.  Plea, 
the  general  issue.  Verdict  and  judgment  for  the 
[*403]  defendant.  *The  record  states  that  this  cause 
was  continued  on  the  10th  of  November,  1828; 
and  that,  on  the  next  day,  the  parties  appeared  by  their 
attorneys,  and  for  trial  put  themselves  upon  the  country. 
It  further  appears  that  a  jury  was  impaneled,  and  that 
a  verdict  and  judgment  were  rendered  for  the  defendant. 

There  is  no  error  in  these  proceedings.  Although  the 
cause  had  been  continued,  the  parties  might  afterwards, 
if  they  chose,  proceed  to  trial.  Their  proceeding  to  trial 
cancelled  the  previous  order  of  continuance.  The  plain- 
tift'  relies  for  a  reversal  of  the  judgment  on  his  having 
been  entitled  to  the  continuance,  in  consequence  of  an 
affidavit  alleged  to  have  been  made  on  his  behalf,  and  on 
his  having  objected  to  the  cancelling  of  the  order  of  con- 
tinuance. These  grounds  of  error,  however,  do  not  ap- 
pear of  record.  The  affidavit  and  the  objection  to  the 
proceeding  to  trial,  alleged  to  have  been  made  for  the 
plaintiff,  could  onl}'  be  shown  by  a  bill  of  exceptions. 
The  transcript  of  the  record,  to  be  sure,  contains  the  copy 
of  an  affidavit  for  a  continuance  made  on  the  part  of  the 
plaintiff,  together  with  a  statement  that  he  objected  to 
proceeding  to  trial  after  the  order  of  continuance,  and 

(a)  GO  Tnd.  158  ;  57  Id.  559  ;  43  Id.  357! 
(6)  16  Ind.  476;  50  Id.  270;  19  Id.  130. 

(474) 


NOVEMBER  TERM,  1831.  4^o-404 

Jaques  v.  The  Board  of  Commissioners  of  Vigo  Couuty, 


that  he  tendered  a  bill  of  exceptions  to  the  opinion  of  the 
Court  ordering  on  the  trial,  which  the  Court  refused  to 
seal.  These  circumstances,  however,  are  only  the  state- 
ments of  the  clerk,  and  constitute  no  part  of  the  record. 
As  the  case  is  presented  to  us,  we  must  consider  that  the 
Court  correctly  permitted  the  cause  to  proceed  after  the 
order  of  continuance ;  and  that  the  trial  took  place  by  con- 
sent of  the  parties.  The  judgment  must,  therefore,  be 
affirmed. 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Cooper,  for  the  plaintiff. 
Rariden,  for  the  defendant. 


Jaques  v.  The  Board  of  Commissioners  of  Vmo  County. 

Waiver  of  Written  Agreement  by  Parol, — A.  having  obtained  a  judg- 
ment against  a  county,  purchased,  under  an  execution  on  the  judgment, 
a  number  of  town  lots  belonging  to  the  county.  Afterwards,  at  a  public 
•  sale  of  these  lots  by  the  county,  B.  bought  one  of  them  for  a  small  sum 
with  notice  of  the  previous  sale,  paid  the  purchase-money,  took  a  receipt 
for  the  same,  and  entered  into  possession.     A.  died,  and  the  county 

[*404]  made  a  compromise  *with  his  heirs,  who  released  their  interest  in 
the  said  lots  to  the  county,  on  receiving  back  the  purchase-money 
paid  by  A.;  the  purchasers  at  the  said  public  sale,  B.  among  the  rest, 
agreeing  by  parol  to  release  their  interest  in  the  lots  to  the  county  on  be- 
ing re-paid  their  purchase-money.  The  county  tendered  to  B.  his  pur- 
chase-money for  the  lot  he  had  bought,  which  he  refused  to  accept ;  and 
he  refused  also  to  execute  the  release.  C.  afterwards,  with  B.'s  knowledge 
and  without  any  objection  by  B.,  purchased  the  last-named  lot  of  the 
county,  and  received  a  deed  from  the  county  for  the  same.  A  bill  in 
chancery,  filed  by  B.  against  the  county  to  obtain  a  title  for  the  lot  thus 
bought  by  C,  was  dismissed  for  want  of  equity. 

M'KiNNEY,  J. — This  is  a  suit  in  equity  for  the  specific 
performance  of  a  contract  to  conve}^  land.  It  has  been 
transferred  from  the  Vigo  Circuit  Court  previous  to  a 
decree,  the  President  Judge  having  been  engaged  as 
counsel  in  the  cause. 

(475) 


404-405     SUPREME  COURT  OF  INDIANA. 

Jaques  v.  The  Board  of  Commissioners  of  Vigo  County. 

The  complainant  alleges  that  he  purchased  of  the  de- 
fendants lot  132  in  the  town  of  Terre  Haute,  the  pay- 
ment of  the  purchase-money,  and  the  refusal  of  the  de- 
fendants to  execute  a  quit-claim  deed,  agreeably  to  the 
terms  of  the  sale;  that,  by  consent  of  the  defendants, 
he  took  possession  of  the  lot  and  made  improvements 
thereon  ;  and  prays  specific  performance.  The  defend- 
ants, in  their  answer,  admit  the  sale  and  payment  of  the 
purchase-money.  They,  however,  introduce  new  matter 
which  the  complainant  is  called  upon  to  answer.  They 
charge  that  complainant,  prior  to  his  purchase  of  the  lot, 
knew  that  it  and  others  belonging  to  the  county  of  Vigo, 
had  been  sold  under  an  execution,  issued  on  a  judgment 
against  the  county  in  favor  of  John  Brocklebank;  that 
they  were  purchased  by  him,  and  that  deeds  were  exe- 
cuted; that  after  the  sale  to  complainant,  by  an  agree- 
ment between  the  defendants  and  the  executor  and  heirs 
of  Brocklebank,  the  latter  released  to  the  county  their 
interest  in  said  lot  and  others  purchased  under  the  said 
judgment,  on  receiving  fi'om  the  county  the  purchase- 
money  which  had  been  paid  for  the  same.  They  further 
charge  that  they  would  not  have  entered  into  the  agree- 
ment with  the  heirs  of  Bi'ocklebank  had  not  the  com- 
plainant and  others  who  had  purchased  lots  at  the  time 
complainant  did,  agreed  that  if  the  defendants  entered 
into  that  agreement,  an  assignment  of  their  interests  in 
the  lots  should  be  made,  on  receiving  back  the  purchase- 
money  which  had  been  paid;  that  this  was  done  to  enable 
the  county  to  secure  a  good  title  to  the  lots;  that  the 
agreement  has  been  complied  with  by  all  the  parties  ex- 
cept the  complainant,  by  releases  executed  and 
[*405]  '"'payment  of  the  pui'chase-money ;  that- the  com- 
plainant has  refused  to  receive  the  purchase- 
money,  it  having  been  tendered,  or  to  release  his  interest 
to  the  lot;  that  he  did  not  refuse  to  release  his  interest 
until  after  the  heirs  of  Brocklebank  had  released  to  the 
county;  that  since  the  release  by  the  said  heirs,  the  de- 

(476) 


NOVEMBER  TERM,  1831.  405 

Jaques  v.  The  Board  of  Commissioners  of  Vigo  County 

fendaiits  have  sold  the  lot  to  one  Ross,  and  executed  a 
warranty  deed  for  the  same  ;  that  the  sale  was  made  to 
Ross,  with  the  knowledge  of  the  complainant  and  with- 
out any  objection  being  made  by  him.  The  complainant, 
in  his  answer  to  the  new  matter,  admits  his  knowledge 
of  the  purchase  of  the  lot  by  Brocklebank,  but  says  he 
did  not  believe  it  valid;  denies  that  he  agreed  to  assign 
his  interest  to  the  county,  on  condition  that  the  heirs  of 
Brocklebank  released  their  interest;  denies  knowledge 
of  such  release  being  made  except  from  hearsay;  denies 
the  tender  of  the  purchase-money.  The  depositions  fnlly 
support  the  defensive  matter  charged  in  the  defendant's 
answer. 

The  case  presents  a  single  queston  :  Is  the  agreement 
by  the  complainant,  to  assign  his  interest  in  the  lot  in 
controversy,  obligator}^  upon  him  ?  It  is  contended  that 
it  is  by  parol,  without  consideration,  and  consequently 
void.  If  this  were  so,  it  is  clear  that  it  would  be  inop- 
erative. A  view  of  the  case,  it  is  thought,  will  warrant  a 
different  conclusion.  The  lot  was  owned  by  the  county 
of  Yigo.  It  had  been  sold  on  an  execution  against  the 
county.  The  complainant  afterwards  purchased  it  on  a 
sale  for  taxes.  He  held  a  tax-title.  The  validity  of  his 
title  had  not  been  established.  He  had  purchased  with  a 
knowledge  of  the  prior  sale.  The  defendants  and  the 
representatives  of  the  purchaser  under  the  execution  en- 
tered into  an  agreement,  by  which  the  latter  released  to 
the  county  their  interest  in  that  and  other  lots  purchased 
under  the  execution,  upon  having  refunded  by  the  county 
the  money  paid  for  them.  This  agreement  was  entered 
into  by  the  defendants  on  condition  that  the  complainant, 
and  others  who  had  purchased  lots  at  the  time  of  com- 
plainant's purchase,  should  also  release  their  interests  in 
the  lots  to  the  county,  upon  re-payment  of  the  purchase- 
mono}'.  To  this  agreement  the  complainant  was  a  party. 
The  defendants  were  unwilling  to  refund  to  the  heirs  of 
Brocklebank  the  purchase-money  of  the  lots,  unless  the 

(477) 


405-406    SUPREME  COUET  OF  mDIANA. 


Jaques  r.  The  Board  of  Commissioners  of  Vigo  County. 


subsequent  purchasers  would  release  their  interest.     They 
agreed  to  do  so,  upon  receiving  the  money  they 
[*406]    had  paid.     The  title  of  the  *county  would  thus 
become  perfect.     The  agreement  appears  to  have 
been  executed  by  all  except  the  complainant.     Having  in- 
duced the  defendants  by  his  agreement  to  release,  to  re- 
pay to  the  heirs  of  Brocklebank  the  purchase-money  of 
the  lots,  and  having  acquiesced  in  a  sale  since  made  by 
the  defendants  of  the  lot,  it  would  surely  be  contrary  to 
every  principle  of  justice  that  he  should  now  be  permit- 
ted to  enforce  a  title.     The  defendants  have  complied  with 
their^  agreement.      They  tendered    the  purchase-money, 
and  It  was  refused.     A  conveyance  now  decreed  to  the 
complainant  relieves  him  from  a  struggle  with  a  prior 
title.     It  enables  him  to  take  advantage  of  his  own  wrong. 
This  the  law  does  not  permit,  nor  does  it  regard  fraud  as 
the  subject  of  its  favor. 

We   have   not   had    before  us  the  written   agreement, 
which  it  is  said  can  not  be  waived.     It  appears  that  a  re- 
ceipt was  given  to  the  complainant.     Its  terms,  however, 
do  not  appear.     A  mere  receipt  for  money  will  not,  of  it- 
self, constitute  a  right  to  the  specific  performance  of  a 
contract  for  the  conveyance  of  land.     Ellis  v.  Deadman's 
heirs,  4  Bibb,  467  ;  Sugd.  on  Ven..  46.     If  the  receipt  con- 
tamed  the  terms  of  the  agreement,  it  is  clear  its  perform- 
ance has  been  waived  by  the  complainant.    That  an  agree- 
ment in  writing  may  be  waived  by  parol  is  well   estab-- 
hshed.     Boisfordv.  Burr,  2  Johns.  Ch.  Rep.  405;  Sugd'' 
on  Ven.  97;  Rob.  on  Frauds,  89;  Price  v.  Dyer,  17  Ves 
.356;  Lucas  v.  31itchell,  3  Marsh.  245  (1).     The  sale  ofthe 
lot  to  Ross  by  the  defendants,  without  objection  on  the 
part  of   the  complainant,  shows   the   light  in  which   he 
viewed   the  agreement    he   had   entered    into.      Had    he 
deemed  his  title  subsisting,  it  may  well  be  supposed  he 
would  have  made  it  known  and  resisted  the  sale.     He 
liowever,  remains  silent.     If  such  conduct,  a  fraud  upon 
Ross,  would  have  enabled  him  to  enforce  a  conveyance, 

(478) 


NOVEMBER  TERM,  1831.  406-407 


Tolen  I'.  Tolen. 


the  defendants  in  resisting  the  present  claim  should  suc- 
ceed. That  Ross  could  have  enforced  a  title,  it  is  thought, 
is  clear.  Wendell  v.  Van  Renssellaer,  1  Johns.  Ch.  Rep. 
344;  Daiin  v.  Spurrier,  7  Ves.  231. 

If  this  bill  were  sustained,  and  a  decree  granted  agree- 
ably to  its  prayer,  the  principle  of  equity  would  be  re- 
versed, which  requires  a  party  who  invokes  its  aid  to  ap- 
pear with  clean  hands,  and  a  triumph  afforded  to  fraud. 

The  bill  must  be  dismissed  with  costs. 
[*4071        *Per  Curiam.— The  bill  is  dismissed  with  costs. 
Cone,  for  the  complainant. 

Farrington,  for  the  defendants. 

a)  \  parol  waiver  and  abandonment  of  an  agreement  duly  signed,  may 
be  set  up  as  a  defence  to  a  bill  for  specific  performance;  but  the  circum- 
stance. um=£  bo  such  as  to  evince  an  intention  in  the  parties  that  there 
should  be  a  total  dissolution  of  the  contract,  placing  them  in  the  same  sit- 
uation  in  which  thev  stood  before  the  agreement  was  entered  into.  Eobm- 
son  V.  Page,  3  Kuss.  114  ;  2  L.  L.  M.  698. 


Tolen  v.  Tolen. 


Divorce— Jurisdiction  of  Foreign  Party.— Petition  by  a  wife  for  a  di- 
vorce. The  marriage  was  solemnized  in  Kentucky,  where  the  parties 
then  resided.  The  husband  there,  in  1822  or  182.3,  deserted  his  wife,  and 
has  ever  since  lived  in  adultery  with  another  woman.  Two  or  three 
years  after  the  desertion,  the  wife  removed  to  this  state,  where  she  has 
since  that  time  resided.  The  husband  was  never  resident  here ;  and  the 
notice  to  him  of  the  pendency  of  this  suit  was  by  publication.  Held,  that 
the  Circuit  Court,  under  the  statute,  has  jurisdiction  of  the  cause  (a). 

Constitutional  Law— Obligation  of  Contracts.— The  constitutional 
provision,  prohibiting  laws  impairing  the  obligation  of  contracts,  does 
not  extend  to  general  laws  authorizing  divorces;  provided  the  legislature, 
in  the  exercise  of  its  power,  does  not  pass  beyond  the  rights  of  its  own 
citizens,  and  act  upon  the  rights  of  the  citizens  of  other  states. 

Divorce— Lex  Domicilii.— In  a  suit  for  a  divorce,  the  lex  domicilii  is  the 
rule  of  decision. 

ERROR  to  the  Decatur  Circuit  Court. 

Stevens,  J.— The  plaintiff  filed  her  petition  in  the  Pe- 


(a)  10  Ind.  436;  24  Id.  35.5. 

(479) 


407-408    SUPREME  COURT  OF  INDIANA. 

Tolen  I.  Toleu. 

catur  Circ'iit  Court  prajnng  a  divorce  from  her  husband, 
the  defendant ;  by  which  it  appears  they  were  married  in 
the  state  of  Kentucky,  where  they  both  resided,  and  that 
they  continued  to  reside  there  as  man  and  wife,  after  their 
marriage,  until  in  the  year  1822  or  1823,  when  the  defend- 
ant eloped  with  an  adulteress,  with  whom  he  has  ever 
since  lived,  and  by  whom  he  has  had  five  or  six  children; 
that  two  or  three  years  after  the  elopement,  the  plaintiff 
removed  to  the  state  of  Indiana  and  permanently  settled 
in  the  county  of  Decatur,  where  she  has  resided  for  the 
last  five  years.  The  Circuit  Court  decided  that  they  had 
no  jurisdiction  of  the  case,  because  the  marriage  and 
causes  of  divorce  both  took  place  in  the  state  of  Kentucky, 
and  the  defendant  has  never  resided  in  this  state. 

A  more  unsettled  question  could  not  perhaps  be  pre- 
sented to  the  Court.  It  has  been  more  or  less 
[*408]  discussed  in  the  Courts  of  '^Europe  and  America 
for  many  years,  and  many  of  the  decisions  are  ap- 
parently conflicting.  Divorces  are  of  two  kinds,  a  mensa 
et  thoro  and  a  vinculo;  and  the  causes  of  divorce  are  as 
different  and  various  as  there  are  diflerent  states  and  gov- 
ernments. By  the  civil  law,  either  party  might  renounce 
the  marriage  union  at  pleasure.  Justinian  for  a  short 
time  abolished  divorces,  but  was  compelled  to  revive  them 
again.  He  restored  the  unlimited  freedom  of  divorce, 
and  gave  as  a  reason  that  the  hatred,  miser}-,  and  crimes, 
w^hich  often  flowed  from  indissoluble  connections,  re- 
quired that  marriages  should  be  subject  to  dissolution  by 
mutual  will  and  consent.  By  the  ecclesiastical  law,  a 
marriage  may  be  dissolved  and  declared  void  ab  initio,  for 
canonical  impediments  existing  previous  to  marriage.  In 
the  Roman  Catholic  states,  heretofore,  divorces  were  not 
allowed,  because  marriage  was  co'nsidered  by  them  a  sacra- 
ment and  indissoluble.  The  Napoleon  Code  admits  of 
divorces  for  several  named  causes  to  be  pronounced  by 
the  tribunals,  where  the  parties  can  not  agree  on  a  disso- 
lution, and  in  all  cases  where  the  parties  agree  thereto. 

(480) 


NOVEMBER  TERM,  1831.  408-409 

Tolen  I'.  Tolen. 

In  England,  a  divorce  a  vinculo  is  seldom  granted  except 
for  adultery,  but  divorces  a  mensa  et  thoro  are  very  com- 
mon and  often  for  very  trifling  causes.  In  some  of  our 
states,  divorces  a  vinculo  are  restrained  by  constitutional 
provisions,  which  require  the  assent  of  two-thirds  of 
the  legislature  founded  on  previous  judicial  investigation. 
In  some,  divorces  are  granted  solely  by  special  acts  of  the 
legislature;  in  others,  divorces  a  vinculo  are  judicially 
granted  for  adultery  only ;  and  in  others,  not  only  for  adul- 
tery but  also  for  ill  treatment,  abuse,  abandonment,  and 
many  other  causes.  In  our  state,  divorces  a  vinculo  only 
are  granted;  a  divorce  a  mensa  et  thoro  is  not  authorized. 
The  causes  of  divorce  are,  1st,  a  former  subsisting  mar- 
riage;  2d,  impotency;  3d,  adultery ;  4th,  abandonment; 
5th,  condemnation  for  a  felony;  6th,  barbarous  and  inhu- 
man treatment;  and  7th  and  lastly,  "in  any  other  case 
where  the  Court  in  their  discretion  shall  consider  it  rea- 
sonable and  proper  that  a  divorce  should  be  granted." 

The  first  point  is,  how  far  the  legislature  of  a  state  can 
interfere  with  a  marriage  contract  under  the  constitution 
of  the  United  States,  which  prohibits  the  states  from  pass- 
ing laws  impairing  the  obligation  of  contracts.    , 

In  the  case  of  Dartmouth,  College  v.  Woodward,  4 
[*409]  Wheaton,  *529,  Judge  Marshall  says,  "  This  pro- 
vision of  the  constitution  never  has  been  under- 
stood to  embrace  other  contracts,  than  those  which  respect 
property,  or  some  object  of  value,  and  confer  rights  which 
may  be  asserted  in  a  Court  of  justice.  It  never  has  been 
understood  to  restrict  the  general  right  of  the  legislature 
to  legislate  on  the  subject  of  divorces.  Those  acts  enable 
some  tribunal,  not  to  impair  a  marriage  contract,  but  to 
liberate  one  of  the  parties,  because  it  has  been  broken  by 
the  other."  And  in  the  same  case  Judge  Story  says,  "A 
general  law  regulating  divorces  from  the  contract  of  mar- 
riage, like  a  law  regulating  remedies  in  other  cases  of 
breaches  of  contracts,  is  not  necessarily  a  law  impairing 
the  obligation  of  such  a  contract.  It  may  be  the  only 
Vol.  II.— 31  (481) 


409-410    SUPREME  COUKT  OF  INDIAXA. 

Tolen  V.  Tolen. 

efl'ectual  mode  of  enforcing  the  obligations  of  the  contract 
on  both  sides.  A  law  punishing  a  breach  of  contract,  by 
imposing  a  forfeiture  of  the  rights  acquired  under  it,  or 
dissolving  it  because  the  mutual  obligations  were  no 
longer  observed,  is  in  no  correct  sense  a  law  impairing 
the  obligations  of  the  contract."  The  Courtis  of  opinion 
that  the  states,  in  the  fair  exercise  of  their  legislative 
powers,  do  not  necessarily  involve  a  violation  of  the 
obligation  of  contracts  in  passing  general  laws  authorizing 
divorces,  if  they  do  not,  in  the  exercise  of  those  powers, 
pass  beyond  the  rights  of  their  own  citizens  and  act  upon 
the  rights  of  the  citizens  of  other  states,  and  thereby  pro- 
duce such  a  conflict  of  the  sovereign  powers  and  collision 
of  the  judicial  powers  of  the  other  states,  as  to  render  the 
exercise  of  such  powers  incompatible  with  the  rights  of 
other  states,  and  with  the  constitution  of  the  United 
States.  We  believe  that  all  Courts  and  jurists  agree,  that 
a  divorce  granted  under  the  laws,  and  by  the  constituted 
authorities,  of  the  government  or  the  state  where  the- 
parties  are  domiciled,  and  where  the  marriage  contract 
was  entered  into,  is  valid  and  binding  every  where.  The 
great  difficulty  is,  where  the  divorce  is  granted  out  of  the 
state  where  the  marriage  contract  was  entered  into,  and 
afterwards  the  parties  return  to  their  native  state.  How 
are  the  Courts  of  the  native  state  to  treat  the  foreign 
divorce  ?  This  brings  us  to  the  second.point  in  this  case, 
which  is — 

Does  the  lex  loci  form  a  part  of  the  marriage  contract, 
or  is  it  governed  by  the  lex  domicilii  ? 

In  England,  it  is  settled  that  no  foreign  Court  is  com- 
petent to  pronounce  a  divorce  a  vinculo  of  English 
[*410]  marriages,  for  any  *cause  other  than-  such  as 
would  be  warranted  by  the  lex  loci  contractus.  In 
the  state  of  New  York  the  EngHsh  doctrine  is  adopted, 
and  no  divorce  of  ISTew  York  marriages,  pronounced  by 
any  foreign  tribunal  out  of  the. United  States,  is  valid,  un- 
less it  be  for  adultery  ;  that  being  the  only  cause  of  divorce 

(482)' 


NOVEMBER  TERM,  1831.  410 

Tolen  V.  Tolen. 

in  that  state.  But  whether  a  divorce,  judicially  granted 
in  one  of  these  United  States  of  a  New  York  marriage, 
would  be  entitled  to  a  different  consideration  in  that  state, 
has  not  as  yet  been  decided.  If  it  would,  it  is  owing  to 
the  force  which  the  national  compact,  and  the  laws  made 
in  pursuance  of  it,  give  to  the  records  and  judicial  pro- 
ceedings of  other  states.  Lord  Meadowbank,  in  the  High 
Court  of  Sessions  in  Scotland,  in  reviewing  the  English 
doctrine  on  the  subject  of  divorce,  says  that  the  relation  of 
husband  and  wife,  wherever  originally  constituted,  is 
entitled  to  protection  and  redress  by  the  laws  of  the 
country  where  the  parties  may  reside.  That  by  marrying 
in  England,  the  parties  do  not  become  bound  to  reside 
there  forever,  nor  are  they  bound  to  treat  each  other  in 
every  country  according  to  the  laws  of  England.  That  a 
redress  of  a  violation  of  the  duties  of  the  marriage  state, 
belongs  to  the  laws  of  the  country  where  the  parties  reside, 
There  is  nothing  in  the  will  of  the  parties  that  gives  the 
lex  loci  any  particular  force  over  the  marriage  contract,  oif 
that  impedes  the  course  of  the  jus  imhlicam  in  relation  to 
it.  That  the  relation  of  husband  and  wife  is  acknoxyl- 
edged  jure  gentium;  and  the  right  to  redress  wrongs  in- 
cident to  that  relation,  exists  in  the  laws  of  the  countrj; 
wherever  the  parties  may  be,  though  the  marriage  may 
have  been  celebrated  elsewhere.  Other  contracts  are 
modified  by  the  will  of  the  parties,  and  the  lex  loci  be 
comes  essential;  but  not  so  with  matrimonial  rights  and 
duties.  Unlike  other  contracts,  they  can  not  be  dissolved 
by  the  will  and  consent  of  those  who  made  them.  Mat- 
rimonial contracts  are  juris  gentium,  and  admit  of  no 
modification  by  the  will  of  the  parties.  Hence,  it  is  not 
necessary  that  a  foreigner  should  have  acquired  a  domicile 
animo  remanendi:  the  law  of  the  country  at  once  applies 
its  own  rules  to  all  domestic  relations,  otherwise  a  numer- 
ous description  of  persons  would  be  permitted  to  violate 
with  impunity  the  obligations  of  domestic  life.  That  each 
country  is  bound  to  look  to  its  own  laws  in  the  adminis- 

(483) 


410-411    SUPREME  COURT  OF  INDIA:^.^. 

Tolen  V.  Tolen. 

tration  of  that  department,  otherwise  the  whole 
[*411]  order  of  society  would  be  disjointed.  If  the  lex  Hoci 
followed  and  governed  the  parties  wherever  they 
went,  it  would  lead  to  inextricable  difficulties,  and  the 
countr}^  would  be  filled  with  privileged  castes,  each  living 
under  separate  laws.  It  is  immaterial  where  the  marriage 
was  entered  into,  it  is  binding  in  all  countries,  not  by 
virtue  of  the  lex  loci,  but  by  the  law  of  nations.  If  the 
lex  loci  were  the  ligament  that  continued  to  bind  it,  the 
same  law  of  course  would  have  to  be  applied  to  when  a 
dissolution  of  it  was  called  for;  and  the  parties  under  a 
Prussian  marriage  would  be  entitled  to  a  divorcee/  vinculo 
forany  of  the  great  variety  of  whimsical  cases  for  which 
a  divorce  is  allowed  by  the  Prussian  code.  This  much 
has  been  said  for  the  purpose  of  throwing  some  light  on 
the  subject,  and  from  the  best  view  which  we  can  take  of 
the  whole  ground,  we  are  of  opinion  that  the  lex  domicilii 
must  govern  the  marriage  contract,  and  the  laws  of  the 
country  wherever  the  parties  may  be  domiciled  must  be 
applied  to  their  domestic  relations. 

The  third  and  last  point  in  the  case  is,  had  the  Circuit 
Court  jurisdiction  ? 

It  appears  from  the  plaintiff's  own  showing  that  the 
marriage  contract  was  made  and  entered  into  in  the  state 
of  Kentucky,  where  both  parties  resided;  that  the  causes 
of  divorce  arose  there;  and  that  the  defendant  does  not 
now  reside,  nor  has  he  ever  resided,  in  this  state.  In  the 
states  of  l!^ew  York  and  Massachusetts  it  has  been  de- 
cided that  where  one  or  both  of  the  parties  remove  into 
another  state  for  the  purpose  of  procuring  a  divorce  con- 
trary to  the  laws  of  their  own  state,  without  an  absolute 
change  of  domicile,  such  divorce  is  null  and  void,  it  being 
obtained  by  fraud;  and  that  the  Court  pronouncing  such 
decree  has  no  jurisdiction,  having  been  imposed  upon  by 
fraud  and  collusion.  These  decisions  we  think  are  good 
law,  but  can  not  apply  to  the  case  under  consideration. 
There  is  neither  fraud   nor  collusion  in  this  case;    the 

(484) 


NOVEMBER  TERM,  1831.  411-412 


Tolen  I'.  Tolen. 


plaintift'is  now  and  has  been  for  several  years,  a  bona  fide 
citizen  of  this  state,  and  has  acquired  a  domicile  cuiimo  re- 
manendi,  and  is  entitled  to  the  benefit  of  the  laws.     The 
statute  of  the  state  of  New  York  only  authorizes  divorces 
a  vinculo  in  the  single  instance  of  adultery;  and  a  bill  for 
a  divorce  can  only  be  sustained    for  that  cause  in   two 
cases:  one,  where  the  married  parties  are  inhabitants  of 
the  state  at  the  time  of  the  commission  of  the  adultery ; 
the  other,  where  the  marriage  is  entered  into  in 
[*412]    the  state,  and  the  *party  injured  is  an  actual  res- 
ident at  the  time  the  adultery  is  committed,  and 
at  the  time  of  filing  the  bill.    We  have  no  such  statutory 
provisions  as  these,  and  therefore  the  judicial  decisions  of 
that  state,  founded  as  they  are  on  these  statutes,  can  shed 
but  little  light  on  the    point  now  under  consideration. 
The  statute  of  this  state  provides  that  absolute  divorces 
shall  be  granted  on  the  petition  of  the  party  aggrieved, 
and  that  all  persons  who  shall  have  resided  in  the  state 
one  year  shall  be  entitled  to  t>he  benefit  of  the  act.     It 
also  provides  that  proceedings  may  be  had  against  non- 
residents as  well  as  residents,  and  points  out  the  mode  of 
giving  actual  notice  to  residents,  and  constructive  notice 
to  non-residents.     It  does  not  require  that  the  defendant 
shall  be  a  resident  of,  or  that  the  marriage  contract  should 
be  entered  into  in,  or  that  the  causes  of  divorce  should 
arise  in,  the  state.     The  Cou'rt  is  of  opinion  that  if  the 
statute  is  constitutional,  it  gives  the  Circuit  Court  juris- 
diction of  the  case ;  and  that  the  statute  is  constitutional 
it  has  no  doubt. 

The  questions  whether  divorces  granted  in  one  state 
will  be  valid  in  another  under  all  circumstances,  and  if 
valid,  to  what  extent,  are  not  now  before  the  Court. 
These  questions  are  grave  questions  under  our  federal 
constitution,  and  if  they  should  ever  be  presented,  they 
will  be  entitled  to  the  most  cautious  and  mature  con- 
sideration. 


:485) 


412-413    SUPREME  COURT  OF  I]S'DIA:N"A. 

The  State,  on  the  complaint  of  Hagaman  i.  Stafford. 

Per  Curiam. — The  judgment    is    reversed  with    costs. 
Cause  remanded,  &c.,  (1). 
S77iith,  for  the  plaintiff. 
Brown,  for  the  defendant. 

(1)  The  reader  will  find  the  law  concerning  divorces  examined  at  large 
in  Kent's  Commentaries,  2d  ed.  vol.  2,  pp.  95  to  128.  Vide,  also,  Indiana 
E.  C.  1831,  p.  213. 


The  State,  on  the  complaint  of  Hagaman  r.  Stafford. 

Bastardy — Criminal,  Proceeding. — The  provisions  of  the  77th  section  of 
the  act  of  1824,  relative  to  crimes  and  punishments,  requiring  certain  ac- 
tions to  be  brought  within  one  year  next  after  the  offence  committed,  do 
not  apply  to  prosecutions  under  the  act  for  the  support  of  illegitimate 
children. 

ERROR  to  the  Greene  Circuit  Court. 

Blackford,  J. — This  was  a  prosecution  under 
[*413]  the  statute  for  *the  support  of  illegitimate  children. 
The  accusation  was  made  by  the  mother  before  a 
justice  of  the  peace  on  the  19th  of  September,  1829 ;  and 
the  child  is  alleged  to  have  been  born  on  the  11th  of 
January,  1826.  The  Circuit  Court  set  aside  the  proceed- 
ings and  discharged  the  defendant. 

It  is  contended,  that  this  suit  could  not  be  brought  after 
the  expiration  of  a  year  from  the  birth  of  the  child,  ac- 
cording to  the  77th  section  of  the  act  relative  to  crimes 
and  punishments.  Stat.  1824,  p.  150.  That  provision, 
however,  is  confined  to  actions  for  forfeitures  on  penal 
statute  and  has  no  application  to  a  case  like  the  present 
for  the  support  of  an  illegitimate  child. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

3ierriU,  for  the  plaintiff, 

Kinney,  for  the  defendant. 


(486) 


NOVEMBER  TERM,  1831.  413-414 


Simonds  v.  Colvert  and  Others,  Executors. 


SiMONDs  V.  Colvert  and  Others,  Executors. 

Justice  of  Peace — Jurisdiction — Administrators. — The  jurisdiction  of 
justices  of  the  peace  does  uot  extend  to  cases  in  which  an  executor  or 
administrator  is  either  plaintiff  or  defendant  (a). 

ERROR  to  the  Sullivan  Circuit  Court. 

M'KiNNEY,  J. — An  action  of  debt  was  brought  against 
the  defendants  as  executors  of  Robert  Colvert,  deceased, 
before  a  justice  of  the  peace.  The  case  was  submitted  to 
a  jury,  and  they  found  for  the  defendants.  The  plaintiff 
appealed  to  the  Circuit  Court,  and  on  motion  of  the  defend- 
ant, the  case  was  dismissed  on  the  ground  of  want  of 
jurisdiction. 

The  question  before  us  is,  has  a  justice  of  the  peace 
jurisdiction  in  a  casein  which  an  executor  is  defendant? 
This  is  an  important  question.  We  approach  it  with  a 
consciousness  that  its  settlement  will  be  sensibly  felt,  in 
the  adjustment  of  claims  within  the  jurisdiction  of  a  jus- 
tice of  the  peace,  growing  out  of  contracts  in  the  repre- 
sentative character.  "We  have  given  the  subject  every  at- 
tention, anxiously  seeking,  by  analogy,  and  precedent,  a 
means  of  arriving  at  a  proper  conclusion.  The  jurisdic- 
tion of  a  justice  of  the  peace,  in  civil  actions,  is 
[*414]  "^unknown  to  the  common  law.  Such  jurisdiction 
is  given  alone  by  statute.  When  a  statute  cre- 
ates a  new  jurisdiction,  the  fixed  rules  of  construction 
denies  to  such  jurisdiction  the  exercise  of  a  power  not 
directly  given.  It  can  not  overstep  the  provisions  of  the 
statute  by  which  it  is  created,  and  enlarge  itself  by  infer- 
ence or  implication. 

We  have  examined  the  acts  regulating  the  jurisdiction 
of  justices  of  the  peace,  and  find  no  provision  which  gives 
ajustice  of  the  peace  jurisdiction,  in  a  case  in  which  an 
executor  or  administrator  is  either  plaintiff  or  defendant. 
The  provisions  of  the  statute,  in   authorizing  process  to 

(a)  8  Blkf.  418. 

(487) 


414-415   SUPREME  COURT  OF  INDIANA. 

Simonds  v.  Colvert  and  Others,  Executors. 

issue,  in  directing  the  manner  of  rendering  judgments, 
regard  the  parties  litigant  as  acting  in  their  own  rights 
and  not  in  aider  droit.  The  case  of  Wells  v.  Newkirk,  Exe- 
cutor of  Pierson,  1  Johns.  Cases,  228,  is  in  point.  The 
Supreme  Court  of  New  York,  in  that  case,  in  deciding 
against  the  jurisdiction  of  justices  of  the  peace,  by  infer- 
ence or  implication,  where  an  executor  was  either  plaintiff 
or  defendant,  present  reasons  which  irresistibly  apply  to 
such  jurisdiction  in  this  state.  Our  statute  applies  to  cases 
in  which  a  suit  is  prosecuted  or  defended  in  a  party's  own 
right,  and  not  in  aider  droit.  Process  and  judgment  are 
predicated  upon  individual  responsibility  :  no  exception  as 
to  arrest  on  warrant,  or  limitation  of  the  operation  of  a 
judgment.  Execution  issues  against  a  defendant  person- 
ally, or  against  his  individual  property.  Defences  which 
are  incident  to  the  representative  character,  are  precluded 
before  a  justice  of  the  peace  without  legislative  enactment. 
The  plea  of  j9?f>;e  administravit,  or  of  outstanding  debts, 
may  put  in  issue  in  amount  greatly  exceeding  the  juris- 
diction of  justices  of- the  peace,  and,  if  acted  upon,  require 
an  examination  of  the  whole  administration.  No  judg- 
ment can  be  rendered  for  assets  infiduro,  nor  against  the 
property  of  the  testator.  Such  are  some  of  the  grounds 
upon  which  the  decision  in  New  York  is  founded.  They 
apply  to  the  case  before  us.  The  judgment  of  the  Cir- 
cuit Court  must  be  affirmed  (1). 

Per  Curiam. — The  judgment  is  affirmed  with  costs. 

Judah,  for  the  plaintiff. 

Kinney,  for  the  defendants. 

(1)  .Justices  of  the  peace  have  now,  by  statute,  the  same  jurisdic- 
[■■■•415]  tion  in  all  cases  "where  executors,  administrators,  or  guardians,  are 
plaintiflfs,  that  they  would  have,  were  those  persons  suing  in  their 
own  right.  But  if  the  defendant,  in  such  a  case,  plead  any  matter  of  pay- 
ment, &c.,  the  plaintiff  may  have  the  cause  removed  to  the  Probate  Court. 
Vide  Stat.  1832,  p.  251 ;  1833,  p.  109;  1834,  p.  157. 


(488) 


NOVEMBER  TERM,  1831.  415 


Daggett  V.  Robins. 


Daggett  v.  Robins. 

"Res  Adjudicata — Nonsuit. — If  the  plaintiff,  in  an  action  of  replevin,  be 
nonsuited,  he  is  not  tliereby  barred  from  bringing  another  action  of  re- 
plevin ;  the  merits  of  the  cause  not  having  been  tried.  This  is  the  com- 
mon law;  and  the  statute  in  England  of  Ed.  1,  prohibiting"a  second  re- 
plevin after  a  nonsuit,  is  local  to  that  kingdom  and  not  in  force  here. 

Replevin — Practice. — The  action  of  replevin  is  not  limited  to  cases  of 
distress ;  but  lies  in  all  cases  of  tortious  and  unlawful  taking  and  deten- 
tion of  goods  and  chattels  («). 

Sajie. — Writs  of  replevin,  in  this  state,  are  issued  out  of  the  Circuit  Court 
and  returned  thither  as  writs  in  other  cases;  and  the  action  of  replevin 
is  proceeded  in  and  tried  as  other  actions  are.  - 

APPEAL  from  the  Vigo  Circuit  Court. 

Stevens,  J. — This  was  an  action  of  replevin,  commenced 
by  the  appellant  against  the  defendant  for  certain  goods 
and  chattels,  which  he  alleged  the  defendant  unjustly  and 
unlawfully  took  and  detained  from  him.  The  defendant 
pleaded  in  bar  that  the  plaintiff  in  the  year  1829,  in  the 
Vigo  Circuit  Court,  by  an  action  of  replevin  against  the 
defendant,  replevied  the  same  goods  and  chattels  out  of 
the  defendant's  possession ;  and  that  at  the  May  term,  A. 
D.  1830,  of  said  Circuit  Court,  the  said  plaintiff"  was  non- 
suit, and  the  defendant  had  judgment  for  a  return  of  the 
goods  and  chattels ;  and  that  they  were  returned  by  the 
sheriff*  of  the  county.  To  this  plea  the  plaintiff  demur- 
red, and  the  demurrer  was  overruled  by  the  Court  and 
judgment  rendered  for  the  defendant. 

The  principal  question' is,  whether  a  nonsuit  in  replevin 
is  a  bar  to  a  second  replevin.  By  the  common  law  it 
would  be  no  bar,  but  the  statute  of  AVestminster  2  (13  Ed. 
1,  st.  1),  chap.  2,  restrains  the  plaintiff'  in  replevin  from  a 
second  replevin  after  nonsuit,  but  permits  him  to  proceed 
with  his  first  action  by  a  writ  of  second  delivery,  and  if 
he  should  become  nonsuit  after  the  writ  of  second  deliv- 
ery, no  further  proceedings  can   be   had.      The  counsel 

(a)  6  Blkf.  136  ;  4  Td.  304. 

(489) 


415-416   SUPREME  COURT  OF  INDIAISTA. 

Daggett  V.  Kobins. 

for  the  appellant  insists  that  the  recoi:d  in  this  case 
shows  it  to  be  an  action  founded  on  a  statute  of 
[*416]  the  ^state  authorizing  the  action  of  replevin  in  all 
cases  where  goods  and  chattels  are  unlawfully 
taken  or  detained,  and  not  governed  by  the  statute  of 
Westminster,  which  relates  only  to  replevins  founded  on 
a  distress  for  rent.  The  record  does  not  show  whether 
the  action  is  founded  on  a  distress  for  rent  or  not,  nor  is 
it  material  that  it  should ;  the  action  in  either  case,  when 
once  in  Court,  is  governed  by  the  same  principles  and 
rules  of  practice.  The  record  in  an  action  of  replevin 
never  shows  whether  it  is  bottomed  on  a  distress  for  rent 
or  not,  unless  the  defendant  in  replevin  spreads  that  fact 
upon  the  record  by  his  avowry,  cognizance,  or  other  de- 
fence which  he  may  make  to  the  action.  It  is  true,  that 
at  the  time  those  proceedings  were  had  in  the  Vigo  Cir- 
cuit Court,  there  were  two  statutes  authorizing  the  action 
of  replevin,  the  one  founded  on  a  distress  for  rent,  and 
the  other  regulating  the  proceedings,  when  the  action  is 
founded  on  any  other  unlawful  and  unjust  taking  or  de- 
taining of  goods  and  chattels.  But  these  acts  only  pro- 
vide for  the  issue  and  service  of  the  writ,  the  disposition 
to  be  made  of  the  goods  and  chattels  replevied,  and  the 
condition  and  effect  of  the  replevin-bond,  &c.  The  plead- 
ings, prosecution  and  proceedings  in  each  action,  and  the 
judgment  rendered,  and  the  execution  awarded,  are  the 
same,  except  as  to  costs. 

The  only  action  now  in  use  is  in  the  detimdt,  and  is  an 
action  that  lies  not  only  in  the  case  of  a  wrongful  distress 
for  rent,  but  in  all  cases  where  goods  and  chattels  are  tor- 
tiously  and  unjustly  taken  and  detained;  and  our  statutes 
above  noticed  do  not  materially  change  the  general  doc- 
trine on  the  subject.  The  passage  in  Blackstone's  Com- 
mentaries, which  says  that  replevin  onl}^  lies  in  case  of 
an  unlawful  distress,  is  unwarranted,  and  is  contradicted 
by  the  best  authorities  in  England  and  America.  Vide  2 
Saund.  Plead,  and  Evidence,  760;  1  Chitt.  Plead.  119; 

(490) 


NOVEMBER  TERM,  1831.  416-417 

Daggett  V.  Robins. 

Bishop  V.  3Iontague,  Cro.  Eliz.  824 ;  Pangburn  v.  Partridge^ 
7  Johns.  Rep.  140;  Shannon  v.  Shannon,  1  Schoales  &  Lef. 
327;  Ilslcy  ct  al.  v.  Stubbs,  5  Mass.  283.  The  action  of 
replevin  is  founded  on  a  tortious  taking  and  detaining, 
and  is  analogous  to  an  action  of  trespass,  but  is  in  part  a 
proceeding  m  rem,  to  regain  possession  of  the  goods  and 
chattels;  and  in  part  a  proceeding  in  'personam,  to  recover 
damages  for  the  caption  and  detention,  but  not  for  the 

value  thereof.  Vide  Hopkins  v.  Hopkins,  10  Johns. 
[*417]    Rep.  373;  1  Chitt.  Plead.  *119;  1  Saund.  Rep.  347, 

b,  note  2;  Fletcher  y.Wilkiiis  et  al,  6  East,  283  (1). 
In  England  there  are  two  kinds  of  replevin ;  first,  by 
common  law,  when  the  writ  issues  out  of  the  Court  of 
chancery;  second,  by  the  statute  of  Marlbridge,  52  Hen. 
3,  which  enables  the  sheriff  to  make  replevins  without 
any  writ,  and  then,  having  taken  security,  proceed  on  the 
complaint  of  the  plaintiff,  either  by  parol  or  precept  to 
his  bailiff,  and  if  a  claim  of  property  is  put  in,  the  writ 
of  de  proprietate  probanda  at  once  issues,  and  is  tried  by 
an  inquest,  and  if  found  for  the  plaintiff,  the  sheriff  goes 
on  to  make  the  replevin,  but  if  for  the  defendant,  he  for- 
bears. If  the  writ  issues  out  of  chancery  at  common 
law,  it  is  only  directory  to  the  sheriff  to  make  replevin 
and  proceed  in  the  county  Court,  and  is  not  Ji  returnable 
process.  In  that  case,  the  writ  de  proprietate  probanda 
can  not  issue  until  a  pluries  is  issued  and  returned  into 
the  King's  Bench  or  the  Common  Pleas,  when  a  judicial 
writ  may  issue.  Any  of  these  suits  are  removable  by 
either  party  into  the  King's  Bench  or  Common  Pleas,  to 
be  there  determined.  If  the  replevin  be  by  writ  in  the 
county  Court,  it  must  be  removed  by  a  pone;  if  by  plaint, 
it  must  be  removed  by  a  recordari  facias  loquelam ;  if  in  a 
Court  of  record  that  may  hold  pleas  in  replevin,  it  must 
be  removed  by  a  writ  of  certiorari ;  and  if  in  the  Court  of 
another  lord,  it  may  be  removed  by  recordari  to  the 
sheriff. 

This  much  of  the  law  of  Ens^land  is  stated  to  show  that 

(lOl') 


417-418   SUPREME  COURT  OF  INDIANA. 

Daggett  V.  Robins. 

there  can  be  no  replevin  under  either  the  common  law, 
or  the  statute  of  Marlbridge,  without  the  aid  of  our  stat- 
utes. The  English  law  is  founded  on  the  usages  and  cus- 
toms of  that  kingdom,  growing  out  of  the  relation  of 
landlord  and  tenant  under  the  feudal  system  and  the  aris- 
tocratical  doctrines  of  primogeniture,  and  is  local  to  that 
kingdom  and  can  not  be  m  force  here.  There  arc  no 
tAvo  kinds  of  replevin  in  this  state  as  in  England,  one  by 
plaint  and  another  by  writ;  nor  is  the  writ  in  replevin 
liable  to  be  defeated  by  a  claim  of  property  .as  it  is  in  Eng- 
land, where  such  claim  as  before  observed  puts  an  end  to 
the  suit,  unless  it  is  revived  by  the  writ  de  proprietatc  pro- 
banda. Our  writs  of  replevin  are  returnable  writs,  and 
the  party  is  riequired  to  appear  on  the  return  day.  They 
issue  out  of  the  Circuit  Courts  as  other  writs  do,  and  are 
there  returnable ;  and  the  suit  is  docketed,  pro- 
[*418]  ceeded  in,  set  down  for  trial  and  *tried,  agreeably 
to  the  laws  and  practice  of  the  Court  as  other 
actions  are.  The  statute  of  Westminster  2,  (13  Ed.  1.  st. 
1.)  chap.  2,  is  applicable  only  to  actions  of  replevin 
founded  on  a  distress  for  rent,  and  is  not  of  a  general 
nature,  but  is  local  to  that  kingdom  and  inconsistent  with 
the  laws,  practice,  and  policy  of  this  state,  and  therefore 
not  in  force.  The  Court,  therefore,  considers  the  plea  of 
the  defendant  in  this  behalf  insuiiicient  in  law  to  bar  the 
plaintiff's  action,  and  that  the  Circuit  Court  erred  in 
overruling  the  demurrer  thereto. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Huntington  and  Cone.,  for  the  appellant. 

Farrington  and  Kinney.,  for  the  appellee. 

(1)  The  action  of  replevin,  in  this  state  is  not  confined,  as  it  is  in  Eng- 
hind,  to  cases  wliere  there  lias  been  an  aclual  and  nronffful  takinx/  of  the 
plaintiff's  goods;  but  it  lies,  also,  in  cases  where  the  goods  of  another  are 
Imrfulb/  acquired  and  unjuMy  and  unlavfulhj  detained.  Vide  R.  ('.  18.31,  p.  424; 
Chinn  v.  Russell,  ante,  p.  172,  and  note  3  ;  Parsley  v.  Huston,  May  term,  1834. 


(492) 


NOVEMBER  TERM,  1831.   .         418-419 


Howell  V.  Wilson. 


HoAVELL  V.  Wilson. 

Indorsement — Contract  of. — The  indorser  of  a  note,  under  our  statute, 
warrants  two  things:  1st,  that  the  note  is  valid  and  the  maker  liable  to 
pay  it ;  2dly,  that  the  maker  of  the  note  is  solvent  and  able  to  pay  it. 

Former  Adjudication — Indorser — Parties. — If  the  indorsee  sue  the 
maker,  and  fail  on  the  ground  that  the  note  had  been  obtained  without 
consideration,  the  indorser  is  not  bound  by  this  judgment  against  the  va- 
lidity of  the  note,  if  notice  was  not  given  him  of  the  pendency  of  the 
suit.  But  the  indorser  may  show,  in  bar  of  an  action  against  him  by 
the  indorsee  under  those  circumstances,  that  the  consideration  of  the 
note  was  a  good  one. 

Indorser — Liability — Eight  of  Indorsee. — The  indorsee  of  a  note,  ob- 
tained from  the  maker  without  consideration,  has  a  right,  as  soon  as  he 
discovers  the  imposition,  to  sue  the  indorser  for  having  assigned  him  a 
note  which  the  maker  is  not  liable  to  pay. 

ERROR  to  tiie  Parke  Circuit  Court. 

Blackford,  J. — Wilson,  ibe  assignee  of  a  note,  brought 
an  action  of  assumpsit  against  Howell,  the  assignor.  It 
was  proved  on  the  trial  that  a  note  for  the  payment  of 
money,  given  by  Coleman  Puit  to  Howell,  had  been  as- 
signed by  the  latter  for  a  valuable  consideration  to  Wil- 
son ;  and  that  an  action  by  Wilson,  the  assignee,  against 
Puit,  the  maker,  had  been  defeated  by  a  plea  of  a 
[*419]  failure  of  consideration.  The  defendant, 'i'Howell, 
in  the  present  action  against  him  on  the  assign- 
ment, offered  to  prove  that  the  consideration  of  the  note 
was  valid,  and  had  not  failed ;  but  the  evidence  was  re- 
jected. The  cause  was  submitted  to  the  Circuit  Court, 
and  a  judgment  rendered  in  favor  of  Wilson,  the  plaintiff 
below. 

One  of  the  errors  relied  pn  by  Howell,  the  plaintiff  in 
error,  is,  that  the  testimony  he  offered  ought  to  have  been 
admitted. 

When  a  man  assigns  a  note  to  another,  he  warrants 
two  things :  first,  that  the  note  is  valid  and  the  maker  liable 
to  pay  it;  secondly,  that  the  maker  of  the  note  is  solvent 
and  able  to  pay  it.     Cases  of  the  latter  kind  are  common; 

(493) 


419-420   SUPREME  COURT  OF  INDIANA. 

Howell  V.  Wilson. 

but  the  one  before  us  is  the  first  of  the  former  kind  that 
we  have  had  occasion  to  examine. 

The  principle  which  must  govern  our  decision  is  a  plain 
one.  Howell  can  not  be  made  liable  for  having  assigned 
a  note,  on  the  ground  that  he  had  obtained  it  without 
consideration,  unless  he  have  an  opportunity  to  establish 
the  validity  of  the  note.  If  Wilson,  after  having  sued 
Puit,  the  maker,  had  given  notice  to  Howell  of  the  pen- 
dency of  the  suit,  the  latter  might  have  attended  at  the 
trial,  and  endeavored  to  support  the  note.  In  that  case 
Howell  would  have  been  bound  by  the  judgment  in  favor 
of  Puit.  But  as  no  such  notice  is  pretended  to  have  been 
given  to  the  indorser,  he  is  not  to  be  precluded  by  the 
proceednig  against  the  maker,  which,  as  to  him,  is  res 
inter  alias  acta.     Maupin  v.  Comj^toyi,  3  Bibb,  214. 

If,  however,  the  facts  are  as  Wilson  states,  and  this  note 
was  really  obtained  by  Howell  from  Puit  without  a  valid 
consideration,  Wilson  had  a  right,  as  soon  as  he  discov- 
ered the  imposition,  to  sue  Howell  for  having  assigned 
him  a  note,  which  the  maker  was  not  liable  to  pay.  Caton 
V.  Lenox,  5  Rand.  31.  The  present  action,  therefore,  is 
not  to  be  barred,  as  contended  for  by  Howell,  merely  be- 
cause no  notice  was  given  him  of  the  pendency  of  the  suit 
against  Puit.  The  cause  stands  upon  the  same  ground  on 
which  it  would  have  stood  had  there  been  no  previous 
suit  against  the  maker  of  the  note.  And  Wilson's  suc- 
cess must  depend  upon  the  decision  of  the  question, 
whether  Puit  was  liable  or  not  for  the  note  at  the  time 
of  its  assignment  by  Howell. 

This  view  of  the  subject  shows  that  Howell  had  a  right, 
in  the  suit  against  him  by  Wilson,  to  prove  that 
[*420]  the  consideration  *of  the  note  was  a  good  one, 
and  had  not  failed  as  Wilson  contended.  We  are 
informed  by  the  record  that  evidence  of  this  kind  was 
offered  by  Howell,  and  rejected  by  the  Circuit  Court. 
The  judgment  against  him  is  consequently  erroneous,  and 
must  be  reversed. 

(494) 


NOVEMBER  TERM,  1831,  420 


Kelly  V.  Duignan  and  Another. 


Per   Curiam.— The  judgment   is   reversed  with   costs. 
Cause  remanded,  &c. 
Hester,  for  the  plaintiff. 
Kinney,  for  the  defendant. 


Kelly  v.  Duignan  and  Another. 

Amendment— Continuance— A  declaration  in  covenant,  not  showing  the 
writing  declared  on  to  be  under  seal,  Avas  amended  by  the  insertion  of 
words  describing  the  instrument  as  a  writing  obligatory.  Held,  that  this 
was  an  amendment  in  substance,  and  entitled  the  defendant,  under  the 
statute,  to  a  continuance. 

ERROR  to  the  Owen  Circuit  Court.— Covenant  by 
Duignan  and  Boggs  against  Kelly.  Demurrer  to  the  dec- 
laration and  judgment  for  the  plaintiffs. 

M'KiNNEY,  J.— Action  of  covenant  for  the  payment  of 
800  gallons  of  whisky.      The  declaration   contains  one 
count.     On  the  calling  of  the  cause,  the  plaintiff  obtained 
leave  to  amend  his  declaration.     The  amendment  con- 
sisted in  making  profert,  and  introducing  the  words  "by 
his  certain  writing  obligatory,"  as  essentially  descriptive 
of  the  instrument.     The  defendant,  upon  the  amendment 
being  made,  moved  the  Court  to  continue  the  cause,  alleg- 
ing ^he  amendment  to  be  of  substance.     The  Court  re- 
fused a  continuance,  and  to  its  opinion  the  defendant  ex- 
cepted.    AVe  think  the  latter  amendment  was  of  sub- 
stance.    The  action  of  covenant  can  only  be  brought  upon 
a  sealed  instrument.     The  words  "  by  his  certain  writing 
obligatory,"  or  other  words  importing  a  specialty,  are  es- 
sentially necessary  to  be  introduced  into  the  count  as  de- 
scriptive of  the  instrument.    Without  these  words,  profert, 
a  matter  of  form,  would  have  been  unnecessary,  and  the 
cause  proceeding  to  judgment,  would  have  been  arrested 
or  reversed  on    error.     The  defendant  can   claim,  as    a 
matter  of  right,  a  continuance  when  a  substantial  amend- 

(495) 


4-21  SUPREME  COURT  OF  INDIANA. 

O'Brien  and  Another  t;.  Coulter  and  Others. 

[*421]  ment  has  been  made.  Ewing  and  others  y.'^French, 
1  Blackf.  170;  Rev.  Code,  1824,  p.  295.  The  re- 
fusal to  continne  the  cause  is  error,  and  meeting  us  in 
limine,  renders  it  unnecessary  to  advert  to  the  subsequent 
proceedings. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Hester,  for  the  plaintift". 

Naylor,  for  the  defendants. 


O'Brien  and  Another  r.  Coulter  and  Others. 

Creditor's  Bill — Property  not  Subject  to  Execution — Equitable 
Rebiedy. — It  is  a  general  rule,  that  to  reach  the  equitable  interest  of  a 
debtor  in  real  estate  by  a  suit  in  chancery,  the  creditors  should  first  ob- 
tain a  judgment  at  law  ;  and  to  reach  personal  property,  both  a  judgment 
and  execution  must  be  shown.  One  exception  to  this  rule  is,  where  the 
debtor  is  deceased  ;  another  exception  is,  where  the  claim  is  to  be  satis- 
fied out  of  a  fund  accessible  only  by  the  aid  of  a  Court  of  chancery. 

Fraudulent  Conveyance. — A  person  indebted  to  several  others  and  in 
insolvent  circumstances,  executed  a  conveyance  of  his  real  estate  to  his 
children,  in  consideration  of  a  nominal  sum  and  of  natural  love  and 
affection,  and  with  an  intent  to  defraud  his  creditors.  Two  of  the 
grantees  were  daughters  and  afterwards  married.  The  grantor  continued 
in  possession,  contracted  other  debts  subsequently  to  the  deed,  and  died 
insolvent.  Held,  that  the  conveyance  was  voluntary,  and  fraudulent  and 
void  as  to  the  creditors  of  the  grantor. 

Tax  Sale — Evidence. — If  the  sale  of  town  lots  for  taxes  was  authorized 
by  the  revenue  act  of  1818  (which  is  doubtful),  the  validity  of  a  sale 
under  the  act  can  only  be  established  by  legal  proof  that  the  law  had 
been  strictly  complied  with. 

Same — Judicial  Sale — Sale  in  Parcels.— Two  town  lots,  one  with  a 
house  on  it,  the  other  unimproved,  worth  400  or  500  dollars,  were  sold 
together  for  a  tax  of  4  dollars.  Held,  that  the  sale  under  those  circum- 
stances was  illegal. 

Presumption — Time — Payment. — After  a  lapse  of  20  years,  without  any 
acknowledgment  of  the  debt,  the  payment  of  a  Meriting  obligatory  may 
be  presumed. 

THIS  was  a  suit  in  eqnit}',  transferred  from  Knox  Cir- 

(496) 


NOVEMBER  TERM,  1831.  421-422 


O'Brien  and  Another  i.  Coulter  and  Others. 


cuit  Court  previously  to  a  decree,  in  consequence  of  the 
interest  of  the  Circuit  Judge. 

Stevens,  J. — The  material  facts  in  this  case  as  disclosed 
by  the  bill,  answer,  exhibits,  and  depositions,  are  these: 
One  Thomas  Coulter,  late  of  the  town  of  Vincennes,  in 
the  county  of  Knox,  some  time  in  the  year  1826,  departed 
this  life  intestate,  leaving,  surviving  him,  one  son,  John 
Coulter,  and  three  daughters,  that  is,  Matilda,  married  to 
John  Pitcher,  Rosantte,  married  to  Christian  Graeter, 
and  Ellen,  married  to  Manual  Rue,  the  above  defend- 
ants. The  intestate,  in  his  life-time,  became  in- 
[*422]  debted  as  ^follows:  To  Jacob  Kuykendall,  by 
writing  obligatory  bearing  date  the  15th  day  of 
October,  1800,  in  the  sum  of  50  dollars,  payable  in  30 
days;  also,  in  the  further  sum  of  11  dollars  and  75  cents, 
by  writing  obligatory  bearing  date  the  8th  of  July,  1809, 
payable  the  1st  day  of  August,  1809.  To  Thomas  Jones, 
by  writing  obligatory,  bearing  date  the  26th  day  of 
August,  1816,  in  the  sum  of  30  dollars.  To  Hyacinth 
Lasselle,  by  judgment  rendered  by  Christian  Graeter,  a  jus- 
tice of  the  peace,  on  the  20th  day  of  January,  1820,  for  5 
dollars  and  41  cents  debt  and  3  dollars  and  37  cents  costs. 
And  to  Dr.  Ellas  M'Namee,  by  open  account  for  medi- 
cine and  medical  services,  in  the  sum  of  220  dollars  and 
75  cents,  as  follows :  in  the  year  1819,  9  dollars  and  25 
cents ;  in  the  year  1820,  54  dollars  and  50  cents ;  in  the  year 
1821,  7  dollars;  in  the  year  1825,  125  dollars;  and  in  the 
year  1826,25  dollars;  making  the  sum  of  220  dollars  and 
75  cents. 

In  the  year  1817,  the  intestate  was  much  indebted  and 
wholly  insolvent,  but  was  the  owner  by  legal  title  and 
possessor  of  a  house  and  lot  on  the  corner  of  Second  and 
Vigo  streets,  in  the  town  of  Vincennes,  being  half  of  lot 
No.  81,  and  a  part  of  lot  No.  80,  worth  at  that  time  400 
or  500  dollars;  and  on  the  8th  day  of  February,  1817,  he 
conveyed  by  deed  in  fee -simple  with  warranty  to  his 
children,  John,  Matilda,  Rosantte  and  Ellen  Coulter,  four 
Vol.  II.— 32  (497) 


422-423     SUPREME  COURT  OF  INDIANA. 

O'Brien  and  Anoilier  v.  Coulter  and  Others. 

of  the  above  defendants,  the  aforesaid  house  and  lot  and 
the  part  of  lot  No.  80,  for  and  in  consideration  of  5  dol- 
lars and  natural  love  and  aflection.  He  continued  to  use 
and  occupy  the  property  as  his  own,  and  enter  it  on  the 
list  of  the  tax  assessor,  and  pay  tax  thereon  as  his  own, 
until  in  the  year  1823,  when  the  whole  was  sold  by  the 
tax  collector  for  the  taxes  and  costs  for  the  year  1823, 
amounting  to  the  sum  of  4  dollars ;  and  was  for  that  sum 
purchased  by  John  Pitcher,  one  of  the  defendants  and  a 
son-in-law  of  the  intestate,  who  received  a  tax  collector's 
deed  or  certificate  therefor.  Pitcher  occupied  the  house 
with  the  intestate,  his  father-in-law,  at  the  time  of  the 
sale  and  purchase,  and  they  continued  so  to  occupy  it 
together  until  the  intestate's  death,  and  Pitcher  has  ever 
since  continued  to  occupy  it.  The  intestate  died  totally 
insolvent,  leaving  no  personal  property  whatever,  nor 
any  real  estate  excepting  the  house  and  lot  and  part  of 
a  lot  aforesaid,  so  deeded  and  conveyed  to  his  children 
and  sold  for  taxes  as  aforesaid,  and  no  letters  of 
["^^423]  administration  *have  ever  been  taken  out  on  his 
estate,  there  being  nothing  to  administer  on. 
Pitcher,  in  his  answer,  insists  on  his  tax-title,  and  sets  up 
in  bar  of  the  complainants'  claims,  the  statute  of  limita- 
tions and  the  presumption  of  payment  from  lapse  of  time. 
The  other  defendants  have  failed  to  answer,  and  the  bill 
as  to  them  is  taken  for  confessed. 

The  first  objection  raised  is,  that  the  complainants  are 
not  judgment  creditors.  It  is  the  general  doctrine,  cer- 
tainly, that  to  reach  the  equitable  interest  of  the  debtor 
in  real  estate  by  a  suit  in  chancery,  the  creditor  should 
first  obtain  a  judgment  at  law;  and  to  reach  personal 
property,  both  a  judgment  and  execution  must  be  shown. 
Brinkerhoff  V.  Brown,  4  Johns.  Ch.  Rep.  671;  1  Har. 
Chan.  116;  1  Vern.  398;  1  P.Will.  445;  3  Litt.  Rep.  12. 
One  exception  to  this  rule  is,  where  the  debtor  is  deceased. 
Thompson  et  ciL  v.  Brown  et  al.  4  Johns.  Ch.  Rep.  619; 
Sioeny  et  al.  v.  Ferguson,  May  term,  1828.     And,  again, 

(498) 


:n'ovember  term,  issi.        423-424 

O'Brien  and  Another  i.  Coulter  and  Others. 

Chief  Justice  Marshall,  in  the  case  of  Russell  v.  Clark's 
Executors,  7  Cranch,  89,  says  "  that  if  a  claim  is  to  be  sat- 
isfied, oat  of  a  fund,  which  is  accessible  only  by  the  aid  of 
a  Court  of  chancery,  application  may  be  made,  in  the 
first  instance,  to  that  Court,  which  will  not  require  that 
the  claim  should  be  first  established  in  a  Court  of  law." 
This  principle  forms  a  second  exception  to  the  general 
rule ;  and  this  case  comes  within  both  these  exceptions. 
The  complainants  in  this  case  come  in  as  creditors  of  the 
intestate,  showing  that  they  have  no  complete  remedy  at 
law,  and  charging  that  the  conveyance  of  the  intestate  to 
his  children,  as  to  them,  is  fraudulent  and  void,  and  that 
the  tax-title  to  Pitcher  is  not  only  illegal,  but  also  fraudu- 
lent and  therefore  void.  They  pray  to  have  these  con- 
veyances set  aside  and  rendered  null  and  void,  and  that 
general  and  proper  relief  be  granted  them  in  the  premises. 
The  writings  obligatory,  judgment,  and  accounts,  are  all 
exhibited,  and  satisfactorily  established. 

The  deed  of  the  intestate  to  his  children  was  clearly  a 
voluntary  conveyance,  and  no  principle  is  better  settled 
than  the  doctrine,  that  voluntary  settlements  made  by  a 
man  indebted  and  in  insolvent  circumstances,  are  fraudu- 
lent and  void  against  creditors,  particularly  so,  if  made 
with  a  fraudulent  intent  or  with  a  view  to  after  pecuniary 

difficulties.  Reade  v.  Livingston,  3  Johns.  Ch. 
[*424]    Rep.  481 ;  Bayard  v.  Hoffman,  4  Johns.  Ch.  *Rep. 

450;  Sexton  v.  Wheaton,  8  Wheatow,  229;  Ilinde 
V.  Longworth,  11  Wheat.  199.  The  conveyance  in  this 
case,  it  is  avered  by  the  complainants  in  their  bill,  was 
made  by  the  intestate  at  a  time  when  he  was  indebted 
and  totally  insolvent,  and  with  a  fraudulent  intent  as  to 
his  creditors.  These  allegations  are  not  denied  by  the 
defendants,  and,  if  they  were  denied,  the  exhibits  and 
depositions  clearly  prove  them  to  be  true.  It  is  objected, 
that  although  the  conveyance  was  voluntary  and  void  in 
its  creation,  yet  that  two  of  the  daughters  having  since 
married,  the  character  of  the  transaction  as  to  them  is 

(499) 


424-425    SUPREME  COUKT  OF  INDIANA. 

O'Brien  and  Another  v.  Coulter  and-  Others. 

changed;  that  marriage  is  the  highest  consideration 
known  to  the  law;  and  that  so  far  as  these  two  daughters 
are  concerned  the  conveyance  is  good,  being  by  the  mar- 
riage placed  on  the  footing  of  purchasers  for  a  valuable 
consideration.  This  as  a  general  proposition  is  correct, 
but  when  applied  to  the  case  under  consideration,  as  pre- 
sented by  the  bill,  answer,  exhibits,  and  depositions,  it 
has  no  application  and  can  not  change  the  features  of  the 
transaction. 

The  next  consideration  is  the  tax-title  of  Pitcher.  It 
may,  perhaps,  be  necessary  in  the  outset  to  premise,  that 
whenever  any  authority  is  given  to  any  person  or  officer 
by  law,  whereby  the  estates  or  interests  of  other  persons 
may  be  forfeited  and  lost,  such  authority  must  be  strictly 
pursued  in  every  instance.  Yancey  v.  Hojjkins,  1  Mun- 
ford,  419.  In  the  case  of  Ronkendorff  v.  Taylor's  lessee,  4 
Peters,  349,  it  is  decided,  that  in  these  ex  'parte  sales,  such 
as  the  sale  of  land  for  taxes,  great  strictness  is  required. 
Every  substantial  requisite  of  the  law  must  be  complied 
with.  No  presumption  can  be  raised  in  behalf  of  the  col- 
lector to  cure  any  radical  defect  in  his  proceedings ;  and 
the  proof  of  regularity  devolves  upon  the  person  who 
claims  under  the  collector's  sale.  The  sale,  in  this  case, 
was  made  under  the  provisions  of  the  revenue  act  of  1818, 
and  the  only  proof  offered  to,  establish  that  the  requisites 
of  the  act  w^ere  complied  with,  is  the  deed  of  the  collector. 
If  it  be  admitted  that  the  averments  and  statements  in 
the  collector's  title,  like  those  in  the  deed  of  a  sheriff,  are 
to  be  taken  for  true  until  the  contrary  is  proven,  3'et  there 
is  not  a  sufficiency  of  evidence  in  this  case  produced  to 
satisfy  the  Court  that  the  substantial  requisites -were 
complied  with.     These  requisitions  are  plainly  delineated 

in  the  act,  and  those  wishing  to  establish  the 
[*425]    validity    of  the    ^sale   are   bound   to  satisfy  the 

Court  by  legal  proof,  that,  there  has  been  a  strict 
compliance  therewith.  The  collector's  title  in  this  in- 
stance does  not  sufficiently  prove  those  facts.     It  is  also 

(500) 


NOVEMBER  TERM,  1831.  425 

O'Brien  and  Another  v.  Coulter  and  Others. 

doubted  whether  the  statute  of  1818  authorizes  the  sale 
of  town  lots  for  taxes.  Some  of  the  most  correct  leeal  char- 
acters  in  the  state  have  had  very  strong  doubts.  The 
Court  however,  on  that  point  gives  no  opinion.  Again, 
those  lots  with  their  improvements  appear  to  have  been 
sold  in  one  lot  for  the  trifling  sum  of  4  dollars.  The  law 
governing  the  sales  of  sheriffs  on  execution  is,  that  so 
much  only  of  the  defendant's  property  shall  be  sold  at 
one  time,  as  a  sound  judgment  would  dictate  to  be  suffi- 
cient to  pay  the  debt,  provided  the  part  selected  can  be 
conveniently  and  reasonably  detached  from  the  residue 
and  sold  separately.  Eeed  v.  Carter^  1  Blackf.  Rep.  410;: 
Tiernan  v.  Wilson,  6  Johns.  C.  Rep.  411  (1).  A  part  of 
this  property  could  have  been  conveniently  and  reason- 
ably selected  and  detached,  being  in  two  separate  lots  of 
land,  one  with  a  house  on  it  and  the  other  without  any 
buildings. 

Pitcher,  in  his  answer,  admits  the  writings  obligatory 
exhibited  to  be  genuine,  but  alleges  they  must  have  been 
paid,  and  relies  on  the  lapse  of  time  for  proof.  That 
after  a  lapse  of  20  years,  without  a  promise  to  pay,  pay- 
ment may  be  presumed,  is  correct;  but  no  such  presump- 
tion can  apply  in  this  case,  the  intestate  having  acknowl- 
edged the  debt  and  promised  payment  within  three  years 
of  the  time  of  his  death,  as  appears  by  the  depositions. 

From  these  views  of  the  case  the  Court  thinks  that  the 
conveyance  from  the  intestate  to  his  children  is  fraud- 
ulent and  void  as  to  creditors,  and  that  Pitcher's  tax-title 
is  illegal  and  conveys  no  title,  and  that  the  complainants 
have  equity  and  are  entitled  to  relief. 

Per  Curiam. — It  is  decreed  that  the  conveyance  of  th) 
intestate,  and  the  tax-title  of  Pitcher,  be  set  Eside,  &c.; 
that  the  lots  be  sold,  &c. ;  and  that  the  commissioner 
report,  &c, 

Judah,  for  the  complainants. 

Hall,  for  the  defendants. 

(1)  Reed  et  al.  v.  Carter,  May  term.  1834,  post.    3  Blkf.  Eep.  376. 

(501) 


426  SUPREME  COURT  OF  INDIANA. 


Lindley,  Executor,  v.  Cravens,  Administratrix. 


[*426]  Lindley,  Executor,   v.  Cravens,  Administratrix. 

Mistake — Remedy — Principal  and  Agent.— A.,  being  the  agent  of  a 
county,  sold  certain  town  lots  belonging  to  the  county  to  B.,  and  gave 
him  a  title-bond  for  the  same.  The  bond  was,  by  mistake  and  contrary 
to  the  intention  of  both  parties,  so  drawn  and  executed  as  to  appear  ob- 
ligatory on  A.  personaliv.  Held,  that  the  mistake  could  not  be  pleaded 
in  bar  to  an  action  at  law  against  A.  on  this  bond  (a). 

Same — Reformation — Remedy. — Held,  also,  that  after  a  judgment  ob- 
tained against  A.  on  the  bond,  he  might,  by  a  bill  in  chancery,  have  the 
judgment  enjoined,  and  the  mistake  in  the  bond  corrected ;  but  that  the 
county  as  well  as  B.  must  be  made  a  party  to  the  suit. 

Practice— Demurrer. — Held,  also,  that  if  a  demurrer  to  a  bill  for  want 
of  proper  parties  be  sustained,  the  bill  should  not  be  dismissed  ;  but  the 
cause  be  ordered  to  stand  over  for  a  reasonable  time,  with  leave  to 
amend  the  bill. 

ERROR  to  the  Orange  Circuit  Court. 

Blackford,  J. — This  is  a  bill  in  chancery  by  William 
Lindley,  executor  of  Jonathan  Lindley,  deceased,  against 
Jane  Cravens,  administratrix  of  William  Cravens,  de- 
ceased. 

The  bill  states  that  Jonathan  Lindley,  having  been  ap- 
pointed agent  of  Orange  county,  sold,  in  his  capacity  of 
agent,  at  public  vendue,  certain  lots  of  ground,  the  prop- 
erty of  the  county,  situate  in  Paoli,  the  seat  of  justice; 
that  three  of  the  lots  were  purchased  by  John  Austin,  for 
which  said  Jonathan,  in  his  capacity  of  agent,  executed 
to  the  purchaser  a  title-bond,  in  substance  as  follows : 

"I.  Territory,  Orange  county.  Know  all  men  by  these 
--  presents  that  I,  Jonathan  Lindley,  lawful  agent  for  the 
\  town  of  Paoli,  am  held  and  firmly  bound  unto  John  Aus-  - 
tin  in  the  penal  sum  of  157  dollars  and  50  cents;  to  which 
payment  I  bind  myself,  my  heirs,  and  every  of  them,  to 
be  made  and  done.  Witness  my  hand  and  seal,  April  9th, 
1816.  The  condition  of  the  above  obligation  is  such,  that ' 
if  the  above  bounden  Jonathan  Lindley  doth  make  a  deed 
unto  John  Austin  for  lots  Nos.  78,  21  and  28,  in  the  town 

(a)  See  49  Ind.  434;  40  Id.  366  ;  9  Jd.  126. 

(502) 


NOVEMBER  TERM,  1881.  426-427 


Lindley,  Executor,  v.  Craveni?,  Administratrix. 


of  Paoli,  as  soon  as  he  can  obtain  a  deed  for  the  same. 
In  failure  thereof,  the  above  obligation  to  stand  in  full 
force  and  virtue  in  law.  The  date  above  written. — Jon- 
athan Lindley  (Seal)." 

The  bill  further  charges  that  the  said  Jonathan,  by  this 
^ond,  intended  to  bind  himself  as  county  agent  and  not 

personally ;  that  he  inserted  by  mistake  therein 
[*427]    the  term  heirs  instead  of  ^successors  in  office,  and 

used  the  words  agent  for  the  town  of  Paoli,  in- 
stead of  agent  for  the  county  of  Orange.  It  is  also  stated 
that  the  consideration-money  for  these  lots  was  paid  by 
the  purchaser  to  the  said  Jonathan,  as  agent  of  the  county, 
and  by  the  latter  paid  over  to  the  county ;  that  the  said 
Jonathan  personally  never  had  any  interest  in  the  lots ; 
and  that  it  was  the  clear  understanding  of  the  parties  at 
the  time  of  the  contract  that  the  said  Jonathan  was  con- 
tracting as  agent  as  aforesaid  and  not  individually.  It  is 
further  stated  that,  some  time  after  the  execution  of  the 
bond,  Austin  received  from  the  said  Jonathan,  as  agent 
of  the  county,  a  deed  for  two  of  the  said  lots,  and  indorsed 
a  receipt  for  it  on  the  title-bond;  that  Austin  afterwards 
assigned  the  bond,  as  to  the  third  lot,  to  William  Cravens, 
who  has  since  died;  and  that  Jane  Cravens,  the  assignee's 
administratrix,  has  recovered  a  judgment  on  the  said  title- 
bond  against  William  Lindley,  executor  of  the  said  Jon- 
athan, to  be  levied  of  the  goods  of  the  testator — the  Court 
having  overruled  the  defendant's  plea,  which  averred  the 
ynistake  in  the  bond.  It  is  also  stated  that  the  circum- 
stances attending  the  execution  of  the  bond,  and  the  in- 
tention with  which  it  was  executed,  were  well  known  to 
William  Cravens  at  the  time  of  the  assignment.  The 
bill  prays  an  injunction  of  the  judgment,  and  general 
relief. 

To  this  bill  the  defendant  below  demurred,  and  set  out 
as  causes  of  demurrer,  1st,  that  the  bill  contains  no  equity ; 
2d,  that  the  county  of  Orange  should  have  Ijeen  a  defend- 
ant.   The  Circuit  Court  sustained  the  demurrer — dissolved 

(503) 


427-428   SUPREME  COUET  OF  IXDIAi^A. 

Lindley,  Executor,  v.  Cravens,  Administratrix. 

the  injunction  which  had  been  granted  in  vacation — and 
dismissed  the  bill. 

The  defendant  in  error  contends  that  the  merits  of  the 
bill  were  decided  in  the  action  at  law,  and  can  not  be  in- 
vestigated again  by  a  Court  of  chancery.  She  contends, 
also,  that  the  county  of  Orange  is  interested,  and  should 
have  been  a  party  to  the  bill. 

The  statement  of  the  bill  is,  that  the  bond  was  intended 
by  the  obligor  and  obligee  to  be  an  official  bond,  obliga- 
tory only  on  the  county  of  Orange ;  but  that,  by  mistake, 
the  bond  was  drawn  so  as  to  appear  to  be  binding  on  the 
obligor  personally.  The  remedy  of  the  complainant,  un- 
der the  circumstances  which  he  states,  can  only 
[*428]  be  by  procuring  the  alleged  mistake  *in  the  bond 
to  be  corrected.  To  eflect  this  purpose,  he  is  com- 
pelled to  resort  to  a  Court  of  chancery.  The  mistake  in 
the  bond  could  not  be  pleaded  by  the  complainant,  in  the 
action  at  law  brought  against  him  on  the  bond;  and  the 
Court  in  which  the  plea  to  that  effect  was  offered  very 
correctly  overruled  it.  The  judgment  at  law,  therefore, 
against  the  complainant,  is  no  bar  to  this  proceeding  in 
chancery. 

The  second  objection  made  to  the  suit  in  chancery  is  a 
good  one.  We  have  already  observed,  that  the  complain- 
ant's relief  was  by  procuring  the  mistake  in  the  bond  to 
be  corrected.  If  he  can  effect  that  object,  he  not  only  dis- 
charges the  estate  of  Jonathan  Lindley  from  the  obliga- 
tion, but  he  makes  the  county  of  Orange  a  party  to  it,  and 
liable  to  comply  with  its  condition.  A  Court  of  chancery, 
certainly,  will  not  make  such  an  alteration  in  this  bond, 
without  giving  to  the  county  an  opportunity  of  shownig, 
that  the  alteration  ought  not  to  be  made.  The  complain- 
ant is  mistaken  in  supposing  that  the  Court  will  relieve 
him,  without  going  any  further.  If  he  obtain  a  decre^^ 
correcting  the  mistake  in  the  bond  and  enjoining  the 
judgment  against  him,  the  same  decree  must  establish  the 
liability  of  the  county  of  Orange  on  the  bond.     The  re- 

(504) 


NOVEMBER  TERM,  1831.  428-429 

Hall  V.  Rogers. 

lief,  therefore,  claimed  by  the  complainant,  can  not  be  ob- 
tained by  him,  unless  the  county,  which  is  to  be  so  ma- 
terially afiected  by  the  decree,  be  made  a  party  to  the 
suit.  The  bill,  therefore,  was  not  sufficient  for  the  ac- 
complishment of  its  object,  on  account  of  the  want  of 
proper  parties.  For  this  objection,  however,  the  bill 
should  not  have  been  dismissed  in  the  first  instance.  On 
sustaining  the  demurrer,  the  Court  should  have  ordered 
the  cause  to  stand  over  for  a  reasonable  time,  with  leave 
to  the  complainant  to  amend  his  bill.  2  Madd.  142.  The 
decree  dismissing  the  bill  must,  therefore,  be  reversed,  and 
time  be  given  to  amend. 

Per  Curiam. — The  decree  is  reversed.  Cause  remanded, 
&c. 

Farnham,  for  the  plaintifi". 

Dewey,  for  the  defendant. 


[*429]  *Hall  i\  Rogers. 

Arrest — Justification — Pleadinc4. — Trespass  and  false  imprisonment. 
Plea,  that  the  plaintiff,  by  his  false  representations  respecting  the  cir- 
cumstances of  a  third  person,  had  induced  the  defendant,  then  in  Louis- 
iana, to  sell  there  on  a  credit  to  such  person  a  boat  laden  with  corn  ;  that 
the  plaintiff  and  the  purchaser  absconded  without  paying  for  the  corn, 
and  were  fugitives  from  justice ;  that  the  defendant,  for  these  reasons, 
made  oath  before  a  justice  in  this  state,  that  the  plaintiff  and  the  pur- 
chaser had  swindled  him  out  of  the  price  of  his  corn ;  that  a  warrant  for 
swindling  was  accordingly  issued  by  the  justice  against  the  parties  com- 
plained of,  upon  which  the  plaintiff  was  arrested,  taken  before  the  jus- 
tice, and  by  him  committed  to  gaol,  which  is  the  same  trespass,  &c.  Held, 
on  demurrer,  that  the  plea  was  insufficient  (a). 

ERROR  to  the  Gibson  Circuit  Court. 

M'KiNXEY,  J. — Trespass  and  false  imprisonment.  The 
declaration  contains  three  counts.  The  two  first  general, 
the   third  special.     Plea  of  not  guilty,  and  two  special 

(a)  35  Ind,  285. 

(505) 


429-430    SUPREME  COURT  OF  I^DIAl^A. 

Hall  !.  Rogers. 

pleas  of  justification.  To  the  special  pleas,  the  plaintifi 
filed  a  special  demurrer.  The  demurrer  was  overruled, 
aud  judgment  rendered  for  the  defendant. 

The  causes  of  demurrer  are,  1st,  no  legal  warrant  au- 
thorizing the  imprisonment;  2d,  no  offence  in  the  affidavit 
on  which  warrant  issued;  3d,  justice  had  no  jurisdiction 
of  the  oftence,  if  an}'.  It  is  averred  in  the  special  pleas, 
both  of  which  are  directed  to  the  same  ground  of  defence, 
that  the  defendant  was  swindled  out  of  860  dollars  and  50 
C-Mits,  in  the  state  of  Louisiana,  by  the  false  representa- 
tions of  the  plaintifi".  They  consisted  in  the  plaintiff's 
representing  that  one  Overfield,  of  that  state,  owned  some 
negroes  and  a  tavern  stand  in  Donaldsville,  and  was  fit 
and  worthy  to  be  trusted;  that,  in  consequence  of  such 
representations,  the  defendant  was  induced  to  trust,  and 
did  trust  Overfield  with  a  boat  of  corn  ;  that  Overfield  did 
not  own  the  property  represented  ;  that  he  was  not  fit  to 
be  trusted ;  and  that  he  absconded  without  paying  de- 
fendant for  his  corn.  It  is  also  averred  that  the  plaintiff 
absconded  and  was  a  fugitive  from  justice;  and  that  the 
defendant,  in  pursuance  of  a  statute  of  this  state  concern- 
ing "fugitives  from  justice,"  went  before  a  justice  of  the 
peace  and  made  an  affidavit,  "  that  he  had  been  swindled 
out  of  860  dollars  and  50  cents  by  Overfield  and  Hall, 

plaintiff";  that  upon  such  affidavit  a  warrant  was 
[*430]    issued  against  *Overfield  and  Hall,  plaintiff",  for 

swindling;  that  Hall  was  arrested,  taken  before  a 
justice  of  the  peace,  and  by  him  committed  to  jail;  which 
are  the  same  trespasses,  &c. 

The  statute  of  this  state,  authorizing  the  arresting  and 
securing  "fugitives  from  justice,"  provides  for  its  action 
only  in  the  event  of  a  crime  committed.  The  distinction 
between  crimes  and  misdemeanors  does  not  warrant  the 
application  of  the  former  grade  of  oft'ence  to  the  act,  to 
which  the  18th  section  of  our  statute  relative  to  crime 
and  punishment  applies.  Upon  such  application,  the 
pleas  are  attempted  to  be  supported.     Admitting,  how- 

(506) 


NOVEMBER  TERM,  1831.  430-431 

Modisett  and  Another  v.  Johnson  and  Others. 

ever,  the  application,  the  pleas  are  insufficient.  They  do 
not  bring  the  acts  of  the  plaintiff  within  the  operation 
of  that  section.  The  false  representation  of  the  solvency 
of  another  is  the  gronud  of  a  civil  action.  The  charges 
in  the  pleas  amount  to  nothing  more.  A  crime  is  not 
charged  to  have  been  committed  in  Louisiana.  If  no 
crime  was  committed  in  that  state,  a  commitment  in  this 
can  not  be  justified.  The  term  "swindling,"  the  charge 
made  in  the  affidavit  and  in  the  warrant,  is  vague  and 
indefinite.  It  does  not  import  a  crime.  Such  a  charge 
is  not  actionable,  not  being  a  punishable  offence.  The 
affidavit  not  charging  a  crime  is  insufficient ;  the  warrant 
pursuing  its  terms  does  not  justify  the  arrest;  the  im- 
prisonment was  illegal.  The  jurisdiction  of  a  justice  of 
the  peace  is  limited.  When  that  jurisdiction  is  trans- 
cended, responsibility  attaches,  and  everything  done  is 
void.  This  principle  applies,  whether  the  want  of  juris- 
diction embraces  the  subject-matter  or  the  person.  Wise 
V.  Withers,  3  Cranch,  331 ;  Perkin  v.  Proctor,  2  Wils.  382 ; 
31ostyn  v.  Fabrigas,  Cowp.  161. 

The  pleas  are  insufficient.  Judgment  should  have  been 
rendered  in  favor  of  the  plaintiff. 

Per  Curiam. — The  judgment  is  reversed  with  costs. 
Cause  remanded,  &c. 

Hall,  for  the  plaintiff. 

Judah  and  Battell,  for  the  defendant. 


[=^431]    ^Modisett  and  Another  v.  Johnson  and  Others. 

JuDGMEXT  Lien — Land  Held  by  Title-Bond. — A  judgment  is  no  lien  on 
land,  which  the  debtor  holds  by  a  bond  conditioned  for  the  execution  of 
a  title  on  payment  of  the  purchase-money,  though  he  had  taken  posses- 
sion and  paid  the  money  before  the  rendition  of  the  judgment ;  and  a 
sheriff's  sale,  on  execution  against  the  obligee,  of  land  .so  held,  conveys 
no  estate  to  the  purchaser  («). 

(a)  45  Ind.  489  ;  21  Id.  112  ;  20  Id.  481  ;  8  Id.  533  ;  6  Id.  380. 

(507) 


481-432    SUPREME  COURT  OF  INDIANA. 


Modisett  and  Another  v.  Johnson  and  Others. 


Same— Sale  of  Equity— Intekest.— The  statute  of  frauds,  authorizing 
the  sale  of  lands  on  execution  against  a  cestui  que  trust,  does  not  extend  to 
equitable  interest  possessed  by  the  obligee  of  a  title-bond. 

Specific  Performance— Requisites.— Upon  an  application  to  the  Court 
of  equity,  for  a  specific  execution  of  a  contract  for  the  sale  of  land,  the 
Court  must  be  satisfied  that  the  claim  is  reasonable  and  just,  and  the 
contract  equal  in  all  parts,  and  founded  on  an  adequate  consideration. 
If  any  of  these  points  be  not  established  by  the  complainant,  he  will  be 
left  to  his  remedy  at  law. 

APPEAL  from  the  Vigo  Circuit  Court.— Bill  in  chan 
eery  by  Johnson  and  others  against  Modisett  and  Chirka 
Decree  of  the  Circuit  Court  for  the  compUiinants. 

Stevens,  J. — The  facts  in  this  case,  as  exhibited  by  the 
bill,  answers,  exhibits,  depositions,  and  record  are  sub- 
stantially these : 

In  May,  1824,  judgment  was  rendered  in  the  Vigo  Cir- 
cuit Court  against  Charles  B,  Modisett,  the  debtor,  and 
Thomas  H.  Clarke,  his  surety,  in  favor  of  Cuthbert  Bul- 
litt, surviving  partner  of  the  late  firm  of  C.  &  T.  Bullitt, 
for  the  sum  of  847  dollars  and  82  cents;  which  judgment 
was  replevied,  under  the  statute,  by  John  M.  Coleman. 
In  May,  1825,  a  writ  of  fi.  fa.  issued,  and  was  levied  by 
the  sheriif  of  the  county  on  some  of  Modisett's  personal 
propert}^,  which  sold  for  159  dollars  and  50  cents;  and, 
at  the  same  time,  the  sheriff  levied  the  same  fi.  fa.  on  5 
out  lots  and  24  in  lots  of  the  town  of  Terre  Haute,  in  the 
county  of  Vigo,  as  the  property  of  Modisett,  among  which 
were  the  lots  in  question  in  this  case,  to  wit,  in  lots  18, 
248,  and  286,  and  out  lots  42,  26,  and  15— all  of  which 
lots  were  returned  not  sold.  In  July,  1825,  a  venditioni 
exponas  issued,  and  all  said  in  and  out  lots,  except  one  in 
lot  numbered  257,  were  sold  by  the  sherift'for  the  sum  of 
39  dollars  and  60  cents.  The  in  lots  18  and  286,  and  the 
out  lots  42,  26,  and  15,  were  purchased  by  said  Daniel  II. 
Johnson  and  one  Robert  Wilson  for  21  dollars  and  622- 
cents,  and  the  in  lot  248  was  purchased  by  one 
['•'432]  Edward  Madden  '''for  one  dollar,  which  lot  the 
said  Madden  afterwards  sold  to  said  Johnson  and 
Wilson.  (508) 


NOVEMBER  TERM,  1831.  432 

Modisett  and  Another  v.  Johnson  and  Others. 

At  the  time  those  lots  of  land  were  levied  on  and  sold, 
they  were  in  the  possession  of  Modisett,  and  held  by  him 
by  bonds  on  the  proprietors  of  the  town,  conditioned  for 
the  conveyance  by  deed  of  the  lots  when  the  purchase- 
money  should  be  paid.  Modisett -had  no  deeds  for  said 
lots  or  an}'  of  them.  The  purchase-money  on  in  lots  248 
and  287,  and  perhaps  on  out  lot  42,  was  paid,  but  the 
purchase-money  for, in  lot  18  and  out  lots  26  and  15  was 
not  paid.  Before  the  sale  of  any  of  the  lots  took  place, 
Modisett  offered  to  give  up  to  the  sheriff  in  lieu  of  said 
lots,  goods  and  chattels  worth  at  least  1,700  dollars;  and 
he  showed  the  sheriff'  a  schedule  of  the  goods  and  chat- 
tels, and  offered  to  give  good  bond  and  security  for  the 
delivering  thereof  on  the  day  of  sale ;  and  the  sheriff  re- 
fused to  receive  them,  stating  that  he  should  first  sell  the 
lots,  as  they  had  been  shown  to  him  by  the  plaintiff''s 
attorney,  Mr.  Farrington.  On  the  day  of  sale  of  the  lots, 
before  any  of  the  lots  were  sold,  Modisett  publicly  in- 
formed all  the  persons  at  the  sale  that  he  had  offered 
goods  and  chattels  in  lieu  of  the  lots,  and  that  the  sheriff 
had  refused  to  take  them,  and  that  he  had  no  title  to  the 
lots,  and  hoped  no  person  would  buy  them,  as  he  did  not 
wish  any  person  to  pay  money  for  him  for  nothing.  And 
after  the  sale  was  over,  and  before  any  money  was  paid 
to  the  sheriff",  Modisett  again  informed  those  who  had 
purchased,  that  he  had  no  title  and  that  he  did  not  wish 
them  to  pay  money  for  him  for  nothing;  that  if  they 
would  relinquish  their  bids  he  would  pay  the  amount  to 
the  sheriff".  Many  of  the  purchasers  did  relinquish  their 
bids,  and  Modisett  paid  the  amount  of  those  bids  so  re- 
linquished. But  Johnson,  Wilson,  and  Madden,  refused 
to  relinquish  theirs;  paid  their  own  bids;  and  took  deeds 
from  the  sheriff'  for  the  lots  they  had  purchased,  being 
the  lots  now  in  controversy.  The  whole  of  the  lots  levied 
on  and  sold  were,  at  the  time  of  the  sale,  worth  upwards 
of  1,200  dollars,  and  in  1829  were  worth  2,800  dollars; 
and  in  lots  18,  248,  and  286,  and  out  lots  15,  26,  and  42, 

(509) 


432-433    SUPREME  COURT  OF  IN'DIANA. 

Modisett  and  Another  v.  Johnson  and  Others. 

were  at  the  time  of  the  sale  worth  105  dolhirs,  and,  iti 
1829,  were  worth  between  500  and  600  doUars  cash  in 
hand.  And  Modisett  and  his  replevin-surety,  John  M. 
Coleman,  were  each  solvent,  and  had  a  sufficiency  of  both 

real  and  personal  property  to  pay  the  amount  of 
[*433]    the  ^execution   on  which   those  lots  were  sold. 

In  1826,  Thomas  H.  Clarke  purchased  of  Modi- 
sett the  in  lot  286,  and  out  lots  15,  26,  and  42,  for  430 
dollars,  and  took  an  assignment  from  Modisett  of  the 
title-bonds  on  the  proprietors  of  the  town  for  deeds,  from 
whom  he  has  since  received  deeds  for  the  out  lots,  but 
not  for  the  in  lot,  At  the  time  of  the  purchase,  Modisett 
put  Clarke  into  possession,  which  possession  he  still  holds, 
and  the  lots  have  been  much  improved  since  the  sale 
thereof  by  the  sheriff,  both  by  Modisett  and  Clarke. 

The  complainants  allege  in  their  bill  that  all  the  lots 
levied  on  and  sold  were  paid  for  at  the  time  of  the  sale, 
and  that  Modisett  was  at  that  time  entitled  to  deeds  there- 
for, and  that  he  neglected  and  delayed  taking  deeds  for 
the  purpose  of  defrauding  his  creditors.  They  further 
allege  that  Clarke  had  full  notice  of  the  premises,  and 
that  the  sale  from  Modisett  to  Clarke  was  and  is  volun- 
tary and  fraudulent,  and  was  made  for  the  purpose  of  de- 
frauding the  complainants  out  of  their  rights,  and  pray 
the  Court  for  special  and  general  relief.  Modisett  in  his 
answer  expressly  denies  that  he  delayed  and  neglected 
perfecting  his  title  to  those  lots  for  the  purpose  of  de- 
frauding his  creditors;  but  says  that  he  was  not  entitled 
to  deeds  for  any  except  three ;  and  that  for  the  purpose 
of  saving  expense,  he  wished  all  his  lots  to  be  conveyed 
by  one  deed,  and  was  merely  waiting  until  they  all  should 
be  paid  for,  so  as  to  include  them  all  in  one  deed ;  that  he 
was  always  able  to  pay  his  debts  and  did  pay  them.  He 
also  denies  all  fraud.  Modisett  and  Clarke  both  expressly 
aver  that  the  sale  and  transfer  by  Modisett  to  Clarke  of 
the  aforesaid  lots  were  bona  fide,  and  for  a  valuable  con- 
sideration ;  and  that  Clarke  had  no  notice  whatever,  of 

(510) 


'     NOVEMBER  TERM,  1831.  433-434 

Modisett  and  Anothei'  v.  Johnson  and  Others. 

any  description,  of  the  aforesaid  sheriff's  sale,  or  that 
there  was  any  claim  or  incumbrance  of  any  description 
on  the  lots  when  he  purchased  and  took  the  transfers  and 
possession  from  Modisett.  And  they  both  deny  that  the 
complainants  have  either  a  legal  or  an  equitable  title  to 
either  the  possession  or  fee  simple  of  the  property.  They 
also  deny  all  fraud.  It  appears  of  record  that  Robert 
Wilson,  the  original  purchaser  at  the  sheriff's  sale,  is  dead, 
and  that  Martha  Wilson  is  his  widow,  and  Melinda  John- 
son and  Ralph  Wilson,  the  above  appellees,  are  his  chil- 
dren and  heirs,  and  are  therefore  admitted  as  parties  to 
the  suit. 

The  cause  was  heard  in  the  Vigo  Circuit  Court, 
['•'434]  and  a  final  ^decree  rendered  in  favor  of  the  com- 
plainants, requir^ig  Clarke  to  surrender  up  pos- 
session to  them  of  the  oat  lots,  and  convey  the  same  to 
them  by  deed,  and  also  surrender  possession  to  them  of  in 
lot  286,  and  transfer  to  them,  by  assignment,  the  title-bond 
on  the  proprietors  of  the  town  for  a  deed  for  the  same; 
and  that  Modisett  should  surrender  up  possession  of  in 
lot  248,  and  transfer  to  them,  by  assignment,  the  title- 
bond  on  the  proprietors  for  a  deed  thereto;  and  that 
Modisett  and  Clarke  pay  costs,  &c.  To  reverse  which  de- 
cree this  appeal  is  prosecuted. 

The  complainants  bottom  their  claim  to  the  aid  of  a 
Court  of  equity,  in  part,  upon  a  charge  of  certain  inten- 
tional fraudulent  acts  of  Modisett.  They  allege  that  he 
neglected  and  refused  to  take  deeds  for  the  lots  in  ques- 
tion, from  the  proprietors  of  the  town,  for  the  purpose  of 
defrauding  his  creditors.  This  charge  Modisett  most 
positively  in  his  answer  denies,  and  accounts  for  the  de- 
Ifi}  satisfactorily.  There  is  no  evidence  to  sustain  the 
charge,  and  the  circumstances  connected  with  the  trans- 
action go  very  strongly  to  contradict  the  idea  of  such  in- 
tention. Modisett  was  solvent  and  finally  paid  off  his 
debts,  and  was  possessed  of  a  large  personal  property,  and 
also  a  valuable  house,  in  all  amply  sufficient  to  pay  his 

(511) 


434^435    SUPREME  COURT  OF  INDIANA. 

Modisett  and  Another  i\  Johnson  and  Others. 

debts;  all  subject  to  be  seized  and  sold  at  any  moment. 
And  the  judgment,  for  the  satisfaction  of  which  the  lots 
in  question  were  sold,  was  secured  by  replevin-suret}-,  who 
was  solvent,  and  who  resided  in  the  same  place,  and  had 
more  than  a  sufficiency  of  property  to  satisfy  the  execu- 
tion at  any  moment,  subject  to  be  seized  and  sold  when- 
ever the  sheriff  pleased  to  take  it.  Hence,  Modisett  could 
have  neither  interest  nor  inducement  to  endeavor  to  pro- 
tect those  lots  from  his  creditors. 

The  charge  of  fraud  being  disposed  of,  the  case  pre- 
sents for  the  consideration  of  the  Court  two  questions. 
First,  had  Modisett  an  interest  in  these  lots  at  the  time 
of  the  levy  and  sale  thereof,  subject  to  be  seized  and  sold 
on  an  execution  of  fieri  facias  ?  Secondly,  if  so,  are  the 
complainants  entitled  to  the  aid  of  a  Court  of  equity,  to 
perfect  their  possession  and  title  to  the  same,  under  the 
whole  circumstances  and  facts  of  the  case? 

At  common  law,  equitable  interests  are  not  the  subject 
of  execution  ;  but  the  10th  section  of  the  act  for  the  pre- 
vention of  frauds  and  perjuries  converts  them 
[*435]  into  legal  estates,  and  a  *judgmentat  law  is  a  lien 
and  they  become  liable  to  execution.  Buford  v. 
Biiford,  1  Bibb,  305:  Bogart  v.  Perry  et  al.,  1  Johns.  C.  R. 
52.  This  statute  is  copied  from  the  English  statute,  and 
only  applies  to  those  fraudulent  and  covinous  trusts,  in 
which  the  cestui  que  trust  has  and  enjoys  the  whole  real 
and  beneficial  interest  in  the  land,  and  the  trustee  has  the 
mere  nominal,  naked,  and  formal  legal  title,  vested  in  him 
for  the  sole  and  only  use  and  benefit  of  the  cestui  que  trust. 
It  is  clear,  however,  that  the  statute  only  operates  upon 
trusts  declared  by  deeds  of  conveyance  properly  so  called. 
Such  trust  must  arise  from  some  deed  or  conveyance.  As 
if  A.  purchases  land  from  B.  and  pays  for  it  with  his  own 
monev,  and  B.  deeds  the  land  to  C,  there  is  a  resulting 
trust  from  C.  to  A.,  because  B.  the  vendor  conveys  for 
the  use  of  A.  the  vendee.  Jackson  v.  Morse,  16  Johns. 
Rep.  199.     In  such  case,  the  statute  which  subjects  it  to 

(512) 


NOVEMBER  TERM,  1831.  435-486 

Modisett  and  Another  v.  Johnson  and  Others. 

execution  and  sale,  attaches  the  instant  it  is  levied  on  and 
sold,  and  executes  the  trust  and  converts  it  into  a  legal 
estate,  or,  in  other  words,  strikes  the  name  of  .C.  out  of 
the  deed,  and  inserts  the  name  of  the  cestui  que  trust,  for 
whose  use  the  deed  was  made  in  the  first  instance.  But 
until  the  contract  with  B.  was  consummated  by  a  convey- 
ance, A.  had  no  legal  or  executed  estate  entitling  him  to 
be  regarded  as  seized.  His  right,  until  it  was  merged  in 
the  deed  to  C,  was  a  mere  chose  in  action ;  and  his 
remedy,  had  B.  refused  to  convey,  would  have  been  in 
equity  to  compel  a  specific  execution  of  the  contract,  or 
by  a  suit  at  law  for  his  damages.  Per  Judge  Spencer,  in 
the  case  of  Jackson  v.  Morse. 

It  is  essential  from  the  very  words  of  the  statute  to  the 
contemplated  trust,  that  it  should  arise  from  a  deed  or 
conveyance.  The  statute  never  w^as  intended  to  apply  to 
a  case  where  the  trustee  was  not  directly  seized  for  the 
sole  use  and  benefit  of  the  cestui  que  trust.  Bogart  v.  Perry 
et  ill.,  17  Johns.  Rep.  351 ;  Botsford  v.  Burr,  2  Johns.  C. 
Rep.  414.  After  a  man  has  purchased  land  with  his  own 
money  for  his  own  use,  and  takes  a  conveyance  to  himself, 
a  subsequent  purchase  for  him  of  those  lands  can  not,  by 
any  retrospective  effect,  produce  the  trust  contemplated 
by  the  statute.  It  may  be  a  good  ground  for  another  kind 
of  relief,  but  it  can  not  be  that  kind  of  a  trust  which  the 
statute,  upon  a  seizure  and  sale  under  an  execution,  exe- 
cutes and  converts  into  a  legal  estate.  The  trust 
[*436]  must  be  "-^coeval  with  the  conveyance,  and  can  not 
be  raised  by  an  after  transaction.  The  provisions 
of  the  statute  are,  that  on  such  sales  the  land  shall  be  held 
and  enjoyed,  "freed  and  discharged  of  all  incumbrance  of 
the  trustee;"  which  at  once  shows,  that  there  must  be  a 
conveyance  passed  to  some  person  for  the  use  and  benefit 
of  the  cestui  que  trust,  or  those  holding  under  him  can  not 
have  the  legal  title  vested  in  them,  simply  by  the  destruc- 
tion of  the  trustee's  legal  title.  There  must  be  either  an 
absolute  legal  estate,  or  an  interest  vested,  known,  and 
YoL.  II.— 33  (513) 


436-437   SUPREME  COURT  OF  INDIANA. 

Modisett  and  Another  v.  Johnson  and  Others. 

acknowledged  at  law,  before  a  judgment  at  law  can  be  a 
lien  on  it.  A  judgment  at  la^v  is  not  a  lien  on  a  mere 
equitable  interest  in  land,  and  an  execution  under  it  will 
not  pass  an  interest,  which  a  Court  of  law  can  not  protect 
and  enforce.     Bogart  v.  Perry  et  al.,  1  Johns.  C.  Rep.  52. 

The  complainants  have  placed  great  reliance  on  three 
cases  in  "Wendell's  Reports,  and  one  in  Cowen's.  1.  The 
case  of  Forsythe  v.  Clark.  3  Wend.  637.  This  case  is  not 
in  its  details  directly  in  point,  but  the  judge  in  his  argu- 
ment lays  it  down  as  a  principle,  that  where  the  contract- 
ing parties,  after  a  contract  for  the  purchase  of  an  estate, 
and  the  payment  of  the  consideration-money,  but  before 
the  execution  of  a  deed,  conspire  together  to  defraud  the 
creditors  of  the  vendee,  a  Court  of  chancery  may,  on  a 
bill  filed  by  a  creditor,  grant  relief.  As  there  is  no  fraud 
or  collusion  in  this  case  charged  between  Modisett  and 
the  proprietors  of  the  town  of  Terre  Haute,  at  or  before 
the  sale  of  the  lots  in  question,  the  doctrine  laid  down  in 
the  case  of  Forsythe  and  Clark  is  not  applicable.  2.  The 
case  of  Jackson  v.  Walker  et  al.,  4  "Wend.  462.  This  is  a 
case  of  trust  within  the  statute,  created  directly  by  deed, 
and  for  a  fraudulent  purpose,  and  therefore  can  not  aid 
the  complainants  in  this  case.  3.  The  case  of  Jackson  v. 
Bateman,  2  Wend.  559,  This  case  may  be  thought  to 
have  some  bearing  upon  the  present  discussion.  The 
relief  sought  in  the  case  is  similar  to  the  relief  sought  in 
the  one  now  under  consideration,  and  Judge  Marcy,  in 
laying  down  what  he  thinks  the  true  doctrine  in  such 
cases  is,  says  that  there  must  be  such  a  trust  as  the  statute 
can  execute  and  convert  into  a  legal  estate  on  which  the 
judgment  can  be  a  lien,  or  it  is  not  subject  to  execution. 
This  is  certainly  the  true  doctrine,  and  it  is  in  applying 
that  rule,  the  difficulties  and  apparently  conflicting  opin- 
ions arise. 
[*437]  *The  fourth  and  last  case  is  Jackson  v.  Parker, 
9  Cowen,  73.  The  decision  in  that  case  appears 
to  be  in  favor  of  the  complainants  ;  but  the  learned  judge, 

(514) 


NOVEMBER  TERM,  1831.  437 

Modisett  and  Another  v.  Johnson  and  others. 

in  giving  his  opiuion,  has  favored  us  with  the  premises 
from  which  he  draws  his  conclusions,  and  thereby  has  en- 
abled us  to  form  our  own  judgment  from  the  same  prem- 
ises. The  opinion  was  delivered  by  Judge  Savage  ;  and 
he  sets  out  bj'  saying  that  a  judgment  at  law  is  not  a  lien 
on  a  mere  equitable  interest  in  land;  and  the  execution 
under  it  will  not  pass  an  interest,  which  a  Court  of  law 
can  not  protect  and  enforce.  There  must  be  (he  says) 
either  an  interest  known  and  recognized  at  law,  or  an 
equitable  interest  within  the  meaning  of  the  statute.  If 
he  had  stopped  here,  he  would  have  only  reiterated  the 
uniform  current  of  decisions  on  those  cases,  both  in  Amer- 
ica and  England.  But  he  goes  further,  and  says  that  an 
equitable  interest,  coupled  with  possession,  may  be  exe- 
cuted and  sold ;  for  (says  he)  the  interest  of  the  mort-. 
gagor  or  mortgagee  in  possession,  is  bound  by  a  judg- 
ment and  may  be  sold;  but,  out  of  possession,  neither  has 
an  interest  upon  which  the  lien  of  a  judgment  can  attach. 
The  case  which  the  judge  has  given,  it  is  apprehended, 
will  not  sustain  the  doctrine  it  was  introduced  to  estab- 
lish. In  the  case  of  a  mortgage,  the  parties  are  placed 
on  peculiar  grounds,  growing  out  of  the  relation  in  which 
they  stand  as  it  respects  each  other's  rights.  Technic- 
ally, the  legal  estate  would  seem  to  vest  in  the  mort- 
gagee upon  the  execution  of  the  mortgage,  subject  to  be 
defeated  by  a  strict  performance  of  the  condition.  Bat 
in  practice  it  is  the  settled  doctrine  in  equity,  and  the 
Courts  of  law  have  long  since  adopted  the  same  doctrine, 
that  the  mortgage  is  a  mere  security,  and  that  the  mort- 
gagor as  to  all  the  world  except  the  mortgagee,  is  the 
real  owner  and  a  freeholder,  with  the  civil  and  political 
rights  belonging  to  that  character;  that  the  equity  of  re- 
demption is  the  real  estate  and  tantamount  to  a  fee  at 
law,  until  barred  by  foreclosure.  4  Kent's  Comm.  158, 
1.54,  note  a,  and  the  authorities  there  cited.  In  New 
York,  and  perhaps  all  the  American  states  except  one,  a 
judgment    at   Jaw,  against   the    mortgagor   before  fore- 

(.51.5) 


487-438   SUPREME  COURT  OF  INDIANA. 

Modisett  and  Another  r.  Johnson  and  Other?. 

closure,  is  a  lien  on  the  equity  of  redemption,  and  the 
estate  is  liable  to  be  executed,  and  sold,  subject  to  the 
lien  of  the  mortgagee.  But  this  is  not  the  case  as 
it  respects  the  estate  of  the  mortgagee.  The  reporter 
has  made  Judge  Savage  say  that  which  is  directl}' 
[*438]  ^contradicted  by  ever}'  case  in  the  books  which 
we  have  seen.  The  decisions  in  New  York  and 
elsewhere  are  quite  uniform  on  that  important  subject. 
They  all  say,  in  express  and  clear  language,  that  the 
estate  of  the  mortgagee  is  not  the  subject  of  execution 
until  the  title  is  made  absolute  by  foreclosure.  That  the 
default  of  the  mortgagor  and  forfeiture  of  the  condition 
of  the  mortgage,  are  not  sufficient  to  make  the  estate  of 
the  mortgagee  subject  to  execution.  There  must  first  be 
an  absolute  foreclosure.  4  Kent's  Comm.  154;  Jackson 
V.  Willard,  4  Johns.  Rep.  41;  Blanehard  v.  Colburn,  IG 
Mass.  Rep.  345  ;  Eaton  v.  Whiting,  3  Pick.  Rep.  484  ;  Hun- 
tington V.  Smith,  4  Conn.  Rep.  235;  Bogart  v.  Perry,  1 
Johns.  C.  R.  52.  The  Court  can  not  perceive  much  anal- 
ogy, if  any,  between  the  great  principles  which  govern 
mortgaged  estates  and  these  now  under  consideration.  In 
England,  not  even  the  equity  of  redemption  is  the  sub- 
ject of  execution. 

Equity  can  not  construe  a  statute  otherwise  than  a 
Court  of  law;  both  Courts  are  bound  b}'  the  same  rules 
of  construction.  Equity  will  remove  impediments  which 
are  in  the  way  of  legal  rights,  and  will  give  redress 
where  there  is  a  right  without  a  remedy  at  law.  or  where 
the  legal  remedy  is  incomplete,  but  can  not  create  a  right 
unknown  to  the  law.  Bn.ford  v.  Buford,  1  Bibb,  305; 
Allen  v.  Sanders,  2  Bibb,  94.  A  bond  for  land  gives  no 
vested  right  to  the  land ;  it  is  but  a  right  to  ask  for  land, 
and  may  be  generally  specilicall}^  enforced.  It  is  not  an 
equitable  interest  that  the  statute  can  execute  and  convert 
into  a  legal  estate.  These  bonds,  bargains,  covenants, 
promises,  and  agreements  for  land,  remain  as  they  did 
before  the  statute,  mere  choses  in  action  which  may  com- 

(516) 


NOVEMBEE  TERM,  1831.  438-439 

Modisett  and  Another  v,  Johnson  and  Others. 

pel  the  subject  in  specie,  or  may  only  sound  in  damages. 
They  are  no  more  the  subject  of  execution,  nor  the  land 
therein  described,  than  bonds,  covenants,  and  contracts, 
for  specilic  chattels.  Thomas  v.  Marshall,  Hardin's  Rep. 
19. 

There  is  one  other  view  of  the  subject  which  it  may  be 
proper  to  notice.  By  the  statute  respecting  the  assign- 
ment and  negotiability  of  bonds  and  notes,  these  bonds 
and  covenants  for  land  are  made  quasi  commercial  jiajper, 
and  are  transferable  from  hand  to  hand  by  endorsement 
thereon ;  and  each  holder  can  maintain  an  action  against 
the  maker  in  his  own  name.  It  can  not  therefore  be  pre- 
sumed that,  in  the  eye  of  the  statute  respecting 
[*439]  the  ^execution  and  sale  of  trust  estates,  these 
bonds  and  covenants  can  be  viewed  as  deeds  or 
conveyances,  creating  a  trust  that  the  statute  can  execute 
and  convert  into  a  legal  estate;  and  upon  which  a  judg- 
ment at  law,  against  each  difierent  holder  through  whose 
hands  they  may  pass,  attaches  as  a  lien.  Such  a  construc- 
tion would  lead  to  endless  difficulties,  destroy  the  object 
of  the  statute  of  assignments,  and  put  out  of  circulation 
a  large  amount  oT  the  active  and  effective  capital  of  the 
country. 

Having  thus  disposed  of  the  first  question,  it  seems  to 
be  unnecessary  to  examine  the  second.  But  as  the  point 
was  ably  argued  by  the  counsel  on  both  sides,  and  the 
consideration  of  it  pressed  upon  the  Court  with  great 
earnestness,  it  is  due  to  those  concerned  that  it  should  be 
noticed.  The  complainants'  counsel  have  insisted  that 
the  mere  inadequacy  of  price  is  not  sufficient  of  itself  to 
set  aside  a  contract  in  any  case,  and  particularly  sales  at 
auction.  This  is  certainly  correct  as  a  general  proposi- 
tion. There  is,  however,  a  great  distinction  between  re- 
scinding a  contract  when  once  executed,  and  refusing  to 
decree  a  specific  performance  of  a  contract.  Chancellor 
Kent  says,  a  Court  of  equity  must  be  satisfied  that  the 
claim  is  fair,  just  and  reasonable,  the  contract  equal  in 

(517) 


439-440   SUPREME  COURT  OF  INDIANA. 

Modisett  and  Another  v.  Johnson  and  Others. 

all  its  parts,  and  founded  on  an  udequato  consideration, 
before  it  will  decree  performance.  If  there  be  an}-  objec- 
tion on  these  points  that  is  well  grounded,  the  party  will 
be  left  to  his  remedy  at  law.  Seymour  v.  Delancey  et  al., 
6  Johns.  C.  Rep.  222.  The  Courts  in  Maryland  have  said, 
that  to  entitle  a  complainant  to  a  decree  for  a  specific  per- 
formance, the  contract  must  be  neither  hard  nor  unrea- 
sonable ;  but  must  be  fair,  full  and  honest  in  all  its  parts, 
not  only  in  the  beginning  but  that  the  performance  of  it 
must  be  such  that  it  may  be  fairly  and  conscientiously  re- 
quired at  the  time  the  aid  of  the  Court  is  asked.  Car- 
berry  V.  Tannyhill,  1  Har.  &  Johns.  224 ;  Perkins  v,  Wright, 
8  Har.  &  M'Henry,  324.  In  South  Carolina,  a  specific 
performance  is  never  decreed,  unless  the  contract  be  fair, 
certain,  just  and  equal  in  all  its  parts,  and  for  an  adequate 
consideration.  Clitheralx.  Oc/ilvie,  1  Desaussure,  257r  In 
Kentucky,  equity  will  not  enforce  the  specific  execution 
of  a  contract,  if  it  were  obtained  under  unfair  circum- 
stances, or  where  there  has  been  any  unfair  practice  after 
contract,  nor  unless  the  contract  appears  fair  and  reason- 
able, nor  if  it  be  hard  or  unconscientious.  Ed- 
[*440]  wards  Y.  Havdley.  ^Hardin,  605;  Buckner  v.  Grif- 
fith, 1  Bibb,  230 ;  Bowan  v.  Irons,  2  Bibb,  78 ;  East- 
land v.Vanarsdel,  3  Bibb,  274.  In  England,  many  of  her 
most  able  chancellors  have  repeatedly  recognized  the  same 
rule  of  decision.  Lords  Chancellors  Somers,  Maccles- 
field, Harcourt,  Talbot.  Hardwicke,  Rosslyn  and  Eldon 
have  all  said  that  equit}'  will  not  carr}-  an  unfair  or  un- 
reasonable transaction  into  execution,  but  will  leave  the 
party  to  his  remedy  at  law. 

The  transaction  under  consideration  is  certainly  hard 
and  unconscientious.  The  price  paid  for  the  lots  is  en- 
tirely inadequate.  It  is  satisfactorily  proved  that,  at  the 
time  of  the  sale,  these  lots  could  have  been  cashed  for  at 
least  105  dollars,  and  at  this  time  for  between  500  and  600 
dollars,  and  the  amount  paid  by  the  purchasers  was  only 
about  21  dollars.     The  other  circumstances  of  the  case 

(518) 


:n'oyember  term,  issi.        440-441 

Jenison  and  Others  t.  Graves  and  Another. 

present  the  purchasers  of  these  lots  in  the  character  of 
cold,  calculating  speculators.  At  the  time  of  the  sale  and 
before  any  purchases  were  made,  Modisett  informed  tlienr 
that  he  had  no  title  to  the  lots,  and  that  he  hoped  they 
would  not  bid;  and  after  the  sale  and  before  any  money 
was  paid  to  the  sherifi',  Modisett  again  informed  them 
that  he  had  no  title,  and  that  he  did  not  wish  them  to 
pay  money  for  him  for  nothing;  and  that  if  they  would 
relinquish  their  bids  he  would  pay  the  amount  thereof 
to  the  sheriff;  which  proposition  they  refused  to  accede 
to.  They  were  not  onl}'  willing  to  see  the  last  drop  of 
blood  drawn  from  their  neighbor's  veins,  but  they  also 
now  demand  the  pound  of  flesh. 

Upon  the  whole  view  of  the  case,  it  is  very  clear  that 
the  appellees  are  not  entitled  to  the  aid  of  a  Court  of 
equity. 

Per  Curiam. — The  decree  of  the  Circuit  Court  is  re- 
versed with  costs.     To  be  certified,  &c. 

Kinney  and  Dewey,  for  the  appellants. 

Farrington  and  Judah,  for  the  appellees. 


Jenison  and  Others  v.  Gkaves  and  Another. 

Implied  Trust— If  one  man  buy  land  with  his  own  money,  and  take  the 
deed  in  the  name  of  another,  a  trust  results  by  implication  in  favor  of 
him  who  paid  the  money. 

Same— Parol  Proof.— The  existence  of  a  resulting  trust  may  be 

[*441]    proved  by  parol  evidence,  in  opposition  to  *the  face  of  the  deed  and 
to  the  answer  of  the  trustee  ;  but  to  establish  the  trust,  under  those 
circumstances,    the  clearest  and  the  strongest  testimony    must  be  pro- 
duced («). 

EQtiiTY— Pleading  and  Practice— Answer.— A  bill  in  chancery,  ^vlien 
denied  by  the  answer,  must  be  proved  by  at  least  two  witnesses,  or  l\v  one 
witness  and  corroborating  circumstances,  or  the  complainant  cnn  net  suc- 
ceed (b). 

Parent  and  Child — Wages  of  Child. — A  father  may  claim  the  ser- 
vices oi  his  children,  whilst  they  are  under  lawful  age  and  are  supported  by 


(a)  14  Id.  62.     (b)  9  Id.  132. 

(519) 


441  SUPREME  COURT  OF  INDIAITA. 

Jenison  and  Others  r.  Graves  and  Another. 

him.  But  should  he,  at  any  time,  relinquish  that  claim,  the  profits  of 
his  children's  labor  then  belong  to  themselves,  and  can  not  be  seized  by 
the  creditors  of  the  father  (c). 

Same — Same — Implied  Trust. — If  a  son  of  full  age  purchase  land  to  be 
paid  for  in  labor,  and  his  father,  being  employed  for  the  purpose  by  the 
son,  perform  a  part  of  the  work  ;  or  if  the  payment  is  to  be  in  money, 
the  father  lend  his  son  a  part  of  the  money  with  which  the  payment  is 
made — a  trust,  pro  ianto,  will  not,  in  either  of  those  cases,  result  to  the 
fatlier. 

Rights  of  Creditors — Property  Subject  to  Execution. — If  an  execu- 
tion-defendant have  goods  subject  to  the  execution,  and  they  be  fraudu- 
lently placed  by  a  third  person  out  of  the  reach  of  the  execution,  such 
third  person  may  be  compelled  by  the  execution-plaintiflf,  in  a  Court  of 
Chancery,  to  account  for  the  property. 

APPEAL  from  the  Marion  Circuit  Court. 

Blackford,  J. — This  was  a  bill  in  chancery,  filed  by 
Bartlett  Graves  and  Harvey  Gregg  against  Rufus  Jeni- 
son, David  E.  Wade,  Samuel  Jenison  and  Stephen  Brown. 
The  cause  was  submitted  to  the  Circuit  Court  upon  bill, 
answers,  and  proofs ;  and  that  Court  rendered  a  decree 
against  Rufus  Jenison,  David  E.  Wade,  and  Samuel 
Jenison,  as  to  a  part  of  the  complaint  against  them,  and 
dismissed  the  bill  as  to  Brown, but  without  costs.  The  de- 
fendants have  appealed  to  this  Court. 

It  is  stated  in  the  bill,  that,  in  1818,  or  1819,  Rufus 
Jenison,  one  of  the  defendants,  gave  his  notes  to  Bartlett 
Graves,  one  of  the  complainants,  for  the  sum  of  533  dol- 
lars; that,  in  1820,  he  gave  to  Thomas  Buckner,  the 
assignor  of  Harvey  Gregg,  the  other  complainant,  his 
note  for  the  sum  of  170  dollars  ;  that,  soon  after  the  giv- 
ing of  these  notes,  Rufus  Jenison,  the  maker,  become  in- 
solvent; that  he  was,  at  the  time  of  his  insolvency,  pos- 
sessed of  a  tract  of  land  in  Kentucky  on  which  he  resided, 
but  which  he  had  previously  mortgaged  to  David  E. 
Wade,  one  of  the  defendants,  for  the  securit}'  of  a  bona  fide 
debt;  and  that,  about  the  time  of  his  becoming  insolvent, 
he  sold  and    conveyed  all    his  interest  in    this    land  to 

(c)  49  Ind.  378. 

(520) 


:N'0V EMBER  TERM,  1831.  441-442 

Jennison  and  Others  v.  Graves  and  Another. 

Wade,  the  mortgagee.  The  bill  states  that,  in  1823, 
when  Rufus  Jenison  relinquished  all  his  claim  to  the  land, 
Wade  advanced  him  100  dollars,  in  order  that  he  might 
afterwards  purchase  other  land  in  Indiana ;  that  in  the 

spring  of  1824,  Rufus  Jenison,  with  these  100 
[*442]    dollars,  *came  to  this  state,  and  purchased  a  tract 

of  land  in  Marion  county;  that,  to  defraud  his 
creditors,  he  took  the  title  in  the  name  of  Wade  ;  that, 
soon  afterwards,  he  removed  with  his  family  from  Ken- 
tucky, settled  on  this  land  where  he  made  valuable  im- 
provements without  any  contract  with  Wade,  and  became 
possessed  of  considerable  personal  property. 

The  bill  states  that,  in  1825,  Rufus  Jenison,  to  defraud 
his  creditors,  executed  a  bill  of  sale  of  his  personal  prop- 
erty to  Daniel  Pattingall — still  keeping  possession  of  the 
same ;  that  in  1826,  when  an  execution  was  levied  on  this 
personal  property,  it  was  fraudulently  bought  in  by  Ben- 
jamin Atherton  with  money  furnished  to  him  by  Rufus 
Jenison,  in  whose  possession  it  continued  to  remain ;  that 
Thomas  Buckner,  afterwards,  commenced  a  suit  against 
Rufus  Jenison  on  the  note  for  170  dollars,  and,  in  the 
spring  of  1827,  whilst  this  suit  was  pending  against  him, 
the  defendant,  for  the  further  protection  of  his  property 
from  execution,  went  to  Cincinnati  and  obtained  in  the 
name  of  his  son  Samuel,  one  of  the  defendants,  who  had 
lately  become  of  lawful  age,  a  deed  from  Wade  for  the 
land  on  which  he,  Rufus  Jenison,  and  his  family  resided — 
his  son,  the  grantee,  paying  no  consideration  for  the  land, 
and  not  being  present  when  the  deed  was  executed ;  and 
that,  upon  Rufus  Jenison's  return  from  Cincinnati,  he 
fraudulently  sold  all  his  personal  property  to  his  son 
Samuel,  taking  from  him  a  lease  for  the  same  property, 
and  for  the  land  conveyed  by  AVade  on  w^hich  they  resided, 
at  the  aimual  rent  of  150  dollars. 

The  bill  states  that,  in  October  1827,  Thomas  Buckner 
recovered  judgment  for  187  dollars,  and  Bartlett  Graves 
recovered  judgment  for  423  dollars  with  interest,  against 

(521) 


442-443    SUPREME  COURT  OF  INDIANA. 

Jenison  and  Others  v.  Graves  and  Another. 

Rufus  Jenisoii,  in  the  Marion  Circuit  Court;  that  Graves 
also,  about  the  same  time,  recovered  judgment  against  him 
before  a  justice  of  the  peace  for  164  dollars  ;  that  an  exe- 
cution issued  on  the  judgment  of  the  justice  in  the  same 
month  of  October,  and  was  levied  on  a  variety  of  personal 
propert}'  in  the  possession  of  Rufus  Jenison  ;  that  this 
property  was  claimed  by  Samuel  Jenison,  the  right  thereto 
tried  by  a  jury,  and,  with  the  exception  of  a  brown  mare 
found  to  belong  to  the  execution  debtor,  Rufus  Jenison  ; 
that  the  pi'operty,  the  mare  excepted,  was  then  sold  by 
virtue  of  the  execution  of  Samuel  Jenison,  and  the  amount 
of  the  sale  paid  over  by  the  constable  to  Samuel 
[*443]  Jenison,  as  *landlord  of  the  premises,  in  part  dis- 
charge of  two  quarters'  rent  alleged  to  be  due  him 
from  his  father;  that  the  brown  mare,  found  by  the  jury 
to  belong  to  Samuel  Jenison,  and  which  had  been  deliv- 
ered to  him  by  the  constable,  was  in  reality  the  property 
of  Rufus  Jenison,  and  liable  to  the  payment  of  his  debts. 
The  bill  states  that  the  judgment  obtained  by  Buckner 
against  Rufus  Jenison,  is,  by  assignment,  the  property  of 
Gregg,  one  of  the  complainants ;  that,  in  1828,  the  com- 
plainants. Graves  and  Gregg,  took  out  executions  on  their 
judgments  rendered  in  the  Marion  Circuit  Court  against 
Rufus  Jenison;  and,  there  bei'ng  no  goods  and  chattels, 
the  executions  were  levied  on  the  real  estate  on  which 
Rufus  Jenison  resided,  and  which  had  been  conveyed  to 
his  son  by  Wade  ;  and  that  the  rents  and  profits  being 
first  ofl:ered  and  not  selling,  the  fee  simple  in  the  land  was 
sold  by  the  sherifi'to  the  complainants  for  the  sum  of  200 
dollars. 

The  bill  further  states,  that,  in  the  spring  of  1826,  Sam- 
uel Jenison,  at  the  request  and  as  the  agent  of  his  father, 
Rufus  Jenison,  purchased  of  George  Dolbair  a  tract  of 
land  in  Marion  county  for  125  dollars;  that  the  payment 
was  made  with  the  property-,  the  money,  and  the  labor  of 
Rufus  Jenison,  whilst  Samuel  was  a  minor,  living  with 
his  father;    and   that  the   deed  was   taken   in    Samuel\' 

(522) 


NOVEMBER  TERM,  1831.  443-444 

Jenison  and  Others  v.  Graves  and  Another. 

name,  to  evade  the  payment  of  the  debts  due  from  Rufus 
Jenison  to  the  complainants.  The  bill  further  states  that 
Samuel  Jenison  has  converted  to  his  own  use  the  per- 
sonal property  which  he  fraudulently  bought  of  and 
leased  to  his  father;  that  he  has  concealed  other  personal 
property  of  Rufus  Jenison's  from  his  creditors;  and  that 
he  has  been  in  the  possession,  and  enjoyed  the  rents  and 
profits  of  the  land  purchased  in  the  name  of  Wade,  since 
Wade  conveyed  the  same  to  him.  The  bill  further  states 
that,  in  November,  1826,  Rufus  Jenison  purchased  from 
tlie  United  States,  and  paid  for,  two  other  tracts  of  land 
situated  in  Marion  county;  but,  to  defraud  his  creditors, 
took  the  title  in  the  name  of  Stephen  Brown;  that  these 
lands  are  the  bona  fide  property  of  Rufus  Jenison,  and  in 
his  possession;  and  that  Stephen  Brown  has,  since  the 
date  of  the  complainants'  judgments,  kept  concealed  in 
his  possession  personal  property  belonging  to  Rufus  Jen- 
ison, for  the  purpose  of  fraudulently  protecting  it  from 

the  complainants'  executions. 
[*444]        *The  prayer  of  the  bill  is,  1st,  That  the  land 

purchased  by  Rufus  Jenison  of  the  United  States, 
in  the  name  of  Wade,  may  be  adjudged  to  have  been 
Rufus  Jenison's  at  the  time  of  the  sheriff's  sale  to  the 
complainants;  that  that  sale  by  the  sheriff  may  be  con- 
firmed, and  the  complainants  put  into  possession  of  the 
land;  and  that  Samuel  Jenison  maybe  obliged  to  account 
for  the  rents  and  profits.  2d,  That  the  land  bought  by 
Samuel  Jenison  of  George  Dolbair,  and  that  bought  by 
Rufus  Jenison  of  the  United  States  in  the  name  of 
Stephen  Brown,  ma}'  be  adjudged  to  be  the  property  of 
Rufus  Jenison,  and  made  subject  to  the  judgments  of  the 
complainants.  3d,  That  Samuel  Jenison  and  Stephen 
Brown  may  be  compelled  to  account  for  the  personal 
property  of  Rufus  Jenison,  fraudulently  protected  by 
them  from  the  complainants'  executions. 

To  this  bill  of   complaint,  the  defendants  have  aU  filed 
their  answers. 

(528) 


444-445   SUPREME  COURT  OF  INDIAKA. 

Jenison  and  Others  v.  Graves  and  Anotlier. 

The  answer  of  Rufus  Jenisoii  is  as  follows:  lie  ad- 
mits that  he  gave  the  notes  to  the  complainants,  and  that 
judgments  were  obtained  upon  them,  as  set  out  in  the 
}>ill.  lie  states  that  he  formerly  owned  a  farm  in  Ken- 
tucky, which,  in  1816,  he  mortgaged  to  David  E  Wade, 
one  of  the  defendants,  to  secure  tlic  payment  of  1,100  or 
1,200  dolhirs,  borrowed  money;  that,  in  1810,  lie  sohl  the 
I'arin  to  Wade  tor  000  dollars,  besides  the  mortgage  money  ; 
that  he  then  leased  tiie  farm  of  Wade  for  four  years  at  240 
dollars  per  annum,  which  was  to  be  re-conveyed  to  iiim, 
should  he,  at  the  end  of  the  term,  pay  Wade  1,700  dollars 
besides  the  rent;  that,  in  1823,  being  unable  to  redeem 
the  land,  he  gave  up  the  possession  to  Wade,  and  can- 
celled the  agreement  to  re-convey,  in  consideration  of 
Wade's  releasing  certain  rents  and  other  demands  due  to 
him.  lie  says  that,  at  the  time  ho  was  coming  to  In- 
diana, he  received  from  Wade  100  dollars,  with  a  request 
to  purchase  for  Wade  80  acres  of  land;  that  he  bought' 
the  land  accordii]gly,  and  afterwards  came  and  occupied 
it  with  the  permission  of  Wade  as  a  tenant  at  will;  that 
he  had  no  knowledge  at  the  time  he  received  the  money, 
or  at  the  time  he  took  possession  of  the  land,  as  to  what 
disposition  Wade  intended  to  make  of  the  property.  He 
says  that  his  son,  Samuel  Jenison,  one  of  the  defendants, 
was  21  years  of  age  on  the  25th  of  September,  1826;  that 

lie  had  certain  perquisites  arising  from  the  defeiid- 
['i'445]    ant's  farm  in  Kentucky,  and  that  ^when  he  came 

to  this  state,  the  defendant  gave  him  his  time, 
and  the  privilege  of  transacting  business  for  himself.  II« 
says  that,  in  the  spring  of  1827,  he  applied  to  Wade,  at 
Cincinnati,  to  ascertain  whether  he  would  not  soil  the 
land  occupied  by  the  defendant  to  his  son  Samuel ;  that 
Wade  refused  to  sell  it  to  Samuel,  but  said  he  would  give 
it  to  him;  and  that  Wade  accordingly  executed  a  deed 
for  the  land  to  Samuel  Jonison,  and  delivered  the  same 
to  the  defendant,  wlio  afterwards  delivered  it  to  the 
grantee. 

(524) 


NOVEMBER  TEUM,  1831.  445-440 


.Iinii-dii  ami  <  (llicrs  i.  ( iravrs  iind  Aimdn 


Tills  (Icfbiidiiiil,  Kiit'iis  Jonisoii,  dciiicH  Ili:it  ho  eitlicr 
|iiii'cli;i.-.('i|,  (ir  r(M|iic-,t ('(1  liis  hoii  SiiiiiiU'l  to  piircliiisc,  any 
IiiikI  of  (ieorsjrc!  Dolbair.  On  the  ('.onli-ary,  lie  uvlth  (liat 
llic  |)nrcliasc  was  iiia<l<'  ai^aiiist  his  Uflvicc  and  ronscid  ; 
that  Ik'  rnrnishcd  no  [lart  of  the  coiiHidd'ation,  and  has  no 
interest  ill  t  he  j)io|'ierty,  Iludcniesall  kiiowlcMlt^t' dl' oik? 
(d  th(!  tracts  of  hind,  (diargod  to  havelx-en  honi^ht  liy  liini 
in  the  name  of  Steplicn  lirou'ii,  one  ol  t  he  (hd'cnchints  ; 
hilt  he  aihiiils  that  lie  did  jiiiridiase,  in  lirowiTs  name,  thi; 
other  tract  (h-scrihcd  in  th(.'  hilh  He  siiys,  liowevei',  that 
lie  |tiireli!iKed  it  niercdy  as  the  ugcnt  oC  Hi-own,  and  i»ai<l 
lor  it  with  IJrown's  money;  that  In;  has  no  Interesl  in  it, 
and  never  had  it  in  j)osHeHHi<)ii.  He  ileni(!H  that  any  ol  his 
IKM'soTijil  [irojierty  was  ever  eom-ealed  hy  Brown,  for  the 
jiiifjiose  of  scouriiii;-  it  from  execution.  This  (hd'endanj 
admits,  that  in  Ajjril,  1827,  he  hniHed  of  IiIh  son  Sainiiel 
the  land  conveyed  hy  Wade,  and  also  the  personal  pro)»- 
orty  mentioiK!*!  in  the  hill;  that  Samuel  had  previonsly, 
on  the  same  day,  hoiii^ht  this  poi'HOnal  property  ol'  him  ; 
and  that  it  remaiiu'd  in  the  defendant's  poHseHsion  until  it 
was  l(!vied  on  and  sold  hy  virtue  f)f  an  execntir)n  in  favor 
of  one  ot't  he  eomplai  mints.  lie  admits,  also,  that,  in  IHiJ,''), 
he  Hold  the  moHt  of  liis  personal  [)roperty  to  I)ani(d  I'at- 
tingall  ;  and,  at  the  same  time,  ke[)t  it  in  IiIk  own  posscH- 
Bion  ;  and  tliat  afterwards,  vvlieii  an  execution  agaitiHt  the 
defendant  in  favor  of  one  of  the  ooniplainants,  was  levied 
on  this  [iroporty,  Tienjamin  Atherton,  with  the  defVmdant's 
nion(!y,  at  his  recpiest,  })Oiiifht  it  in  for  him. 

The  answr-r  of  David  I'].  VV^ade  is  as  follows:  This  de- 
f<'ndant  niak(;s  the  sam<!  answcir  with  Rufus  Jenison,  as  to 
the  d(d)t  due  to  him  from  Jenison,  as  to  tin!  inortgag(! 
given  to  him  for  its  security,  and  as  tr)  his  siihsefpient  pur- 
chase of  Jenison's  farm.  He  says  that  In;  would 
['^■44(>]  have  rather  liad  a  return  of  the  money  *lent  to 
denison,  than  a  conveyance  of  the  farnn  ;  l)ut  that* 
it  was  inqtossihle  for  .jenison  to  make  payment.  He 
states  that  lie  furnished  Rufus. leiiison  100  dollars  to  })ny  for 


446  SUPREME  COURT  OF  INDIANA. 

Jenison  and  Others  v.  Graves  and  Another. 

liim,  this  defendant,  the  hxnd  mentioned  in  the  bill;  that 
Jenison  niade  the  purchase  for  liim  as  his  agent;  and  that 
the  purchase-money  for  this  land  was  allpaidby  him, this 
defendant,  without  any  contract  with  Jenison,  and  with- 
out Jenisou's  paying  or  agreeing  to  pay  any  part  of  it. 
He  states  further,  that  he  intended,  at  the  time  of  the 
purchase,  to  make  a  present  of  the  land  in  question  to 
Samuel  Jenison  ;  that  he  has  since  executed  and  delivered 
a  deed  to  him  for  it;  and  that  neither  Rufus  Jenison  nor 
Samuel  Jenison,  ever  paid  him  or  contracted  to  pay  him 
one  cent  for  this  land. 

The  following  is  the  answer  of  Samuel  Jenison :  This 
defendant's  statement  is  the  same  with  Rufus  Jenison's 
respecting  his  age,  his  privileges  in  Kentucky,  and  his 
right  to  receive  the  profits  of  his  labor  and  trade  for  him- 
self, given  to  him  by  his  father  since  their  removal  to  this 
state.  He  makes  a  similar  statement,  also,  to  that  of  his 
father,  relative  to  Wade's  execution  of  a  deed  to  him  for 
the  land  mentioned  in  the  bill,  without  his  paying  any 
consideration  for  the  same.  He  says  that,  in  October, 
1826,  he  purchased  of  George  Dolbair  the  tract  of  land 
mentioned  in  the  bill,  for  the  sum  of  125  dollars,  and  has 
since  paid  for  it  with  his  own  labor  and  funds.  He  sets 
out  particularly  the  various  items  of  payment,  and,  among 
other  things,  the  payment  of  50  dollars  by  clearing  land 
for  Dolbair.  He  says  that  he  was  21  years  of  age  before 
he  made  this  purchase;  that  it  was  not  made  at  the  in- 
stance of  his  father,  but  in  opposition  to  his  advice  ;  and 
that  his  father  paid  no  part  of  the  consideration.  This  de- 
fendant admits,  that  the  personal  property  mentioned'in 
the  lease  to  his  father,  except  a  brown  mare,  was  pur- 
chased by  him  of  his  father  on  the  same  day  on  which  the 
lease  is  dated  ;  that  this  property,  the  mare  excepted,  was 
in  possession  of  his  father  both  before  and  after  the  pur- 
chase and  lease ;  that  the  same  continued  in  his  father's 
possession  until  it  was  levied  on  and  sold  by  virtue  of  an 
execution,  in  favor  of  one  of  the  complainants  against  his 

(526) 


NOVEMBER  TERM,  1881.  446-447 

Jenison  and  Others  i:  Graves  and  Another. 

father;  and  that  the  constable  paid  over  the  proceeds  of 

the  sale  to  the  defendant  as  landlord  of  theprem- 

[*447]    ises.  He  says  that  the  *brown  mare,  alleged  in  the 

bill  to  be  his  father's,  belongs  to  himself,  and  was 

bought  by  him  of  John  S.  Monltin. 

The  answer  of  Stephen  Brown,  as  to  the  purchase  of 
land  for  him  b}^  Rufus  Jenison,  and  as  to  his  concealment 
of  Jenison's  goods,  is  the  same  with  the  answer  of  Rufus 
Jenison.  He  denies  that  Rufus  Jenison,  or  any  of  his 
famil}',  ever  had  any  interest,  legal  or  equitable,  in  the 
land  bought  by  him  for  this  defendant;  and  he  denies, 
also,  that  he  ever  concealed  any  of  Rufus  Jenison's  prop- 
erty from  his  creditors. 

After  the  filing  of  these  answers,  the  complainants  filed 
an  amendment  to  their  bill,  which  was  answered  by  three 
of  the  defendants.  It  is  unnecessary,  however,  to  notice 
particularly  these  latter  proceedings,  as  they  furnish  no 
additional  matter  material  to  the  decision  of  the  cause. 

The  first  question  which  this  case  presents  for  our  con- 
sideration is:  Whether  the  land  purchased  in  the  name 
of  Wade,  and  conveyed  by  him  to  Samuel  Jenison,  is  sub- 
ject to  the  judgments  of  the  complainants  against  Rulus 
Jenison  ? 

The  bill  admits  that  the  legal  title  to  this  land  was 
vested  in  Wade  by  a  patent  from  the  United  States.  The 
complainants  contend,  however,  that  the  land  was  paid 
for  with  the  money  of  Rufus  Jenison;  and  that,  there- 
fore, the  beneficial  interest  and  real  ownership  are  in  him. 
The  law  is  admitted  that  where  one  man  buys  land  with 
his  own  money,  and  takes  the  deed  in  the  name  of  an- 
other, a  trust  results  by  implication  in  favor  of  him  who 
paid  the  money.  Boyd  v.  31 'Lean,  1  Johns.  C.  R.  582. 
It  is  only  the  question  of  fact,  in  this  case,  as  to  whose 
money  was  paid,  that  is  in  dispute  between  these  parties. 
The  answers  of  Wade  and  Rufus  Jenison  deny  the  trust, 
and  aver  the  land  to  have  been  bought  with  the  money 
of  Wade.     The  answer  of  AVade  places  the  case  on  very 

(527) 


447-448    SUPREME  COURT  OF  INDIANA. 

Jenison  and  Others  v.  Graves  and  Another. 

Strong  ground  against  the  complainants.  It  is  even  said 
by  a  respectable  writer  to  be  doubtful  whether  the  an- 
swer of  the  trustee  denying  such  a  trust,  can  be  contra- 
dicted by  parol  testimony.  Sugden  on  Vendors,  p.  415. 
It  is  decided  in  New  York,  however,  that  parol  evidence 
is  admissible  under  these  circumstances;  but  the  Chan- 
cellor says  that  if  the  point  were  res  integra,  he  would  not 
admit  the  evidence.  Boyd  v.  3f'Lean,  1  Johns.  C.  R. 
582.     The  claim,  in  this  case,  is  opposed  by  the  face  of 

the   patent,  and   by  the    answer   of  the  trustee. 
[*448]    These,  we  agree,  *may  be  contradicted  by  parol 

evidence,  but  to  succeed  against  them,  the  clear- 
est and  the  strongest  testimony  must  be  produced. 

The  defendants'  counsel  inquired,  in  the  argument, 
whether  Rufus  Jenison  could  have  established  a  trust  in 
this  case  against  Wade,  and  contended  that  if  he  could 
not  his  creditors  can  not.  We  have  looked  into  the  rec- 
ord before  us  with  a  view  of  finding  an  answer  to  this 
question;  but  our  search  has  been  in  vain.  The  com- 
plainants say  that  the  purchase-money  belonged  to  Rufus 
Jenison.  Where,  we  ask,  is  the  evidence  of  that  asser- 
tion? The  onus  jyrobandi  Vies  on  the  complainants.  There 
have  been,  to  be  sure,  a  great  number  of  witnesses  exam- 
ined, but  there  is  not  one  of  them  who  pretends  to  any 
direct  knowledge  on  the  subject.  The  complainants  rely 
entirely  on  presumptive  proof.  They  show  that  Rufus 
Jenison  was  the  actor  in  delivering  the  money  to  the  re- 
ceiver of  the  land-oflice;  that  he  settled  on  the  laud  with 
his  family  soon  after  the  purchase;  that  he  made  consid- 
erable improvements,  as  if  the  land  were  his  own.  They 
show  that  AVade,  three  years  after  the  purchase,  con- 
ve\^ed  the  land,  without  consideration,  to  the  son  of 
Rufus  Jenison ;  and  that  Rufus  Jenison,  after  this,  exe- 
cuted a  relinquishment  of  ground  for  a  road  through  tlie 
land.  They  show,  also,  several  fraudulent  attempts  of 
Rufus  Jenison,  whilst  living  on  the  premises,  to  secure 
his  personal   propert}'   from   his   crctlitors.     From    tliose 

(528) 


ITOVEMBER  TERM,  1831.  448-449 

Jenison  and  Others  v.  Graves  and  Another. 

circumstances  we  are  called  on  to  presume  that  Rufus 
Jenison  paid  his  own  money  for  this  land,  and  that  it 
therefore  is  his  property. 

In  opposition  to  this  circumstantial  proof,  AYade  relies 
on  his  patent  from  the  United  States  for  the  land;  and 
also  upon  his  answer,  in  which  he  expressl}'  denies  the 
trust,  and  avers  that  he  bought  the  land  with  his  own  money, 
through  the  agency  of  Rufus  Jenison. 

With  this  statement  of  the  principal  grounds  relied  on 
by  the  parties,  we  refer  again  to  the  question,  Could  Rufus 
Jenison,  under  these  circumstances,  have  established  a 
trust-estate  in  the  premises  against  Wade?  We  certainly 
think  not.  Even  in  ordinary  cases,  where  the  material 
allegation  of  the  bill  is  denied,  circumstances  like  those 
here  relied  on  would  of  themselves  be  of  no  benefit  to  the 
complainant.  A  bill,  when  denied,  must  be  proved 
[*449]  by  at  least  two  witnesses,  or  by  one  witness  *and 
corroborating  circumstances.  Smith  v.  By^ish,  1 
Johns.  C.  R.  459;  Stat.  1824,  p.  285;  Green  et  al.  v.Var- 
diman  et  al.,  'Nov.  term,  1830.  There  is  not,  in  the  pres- 
ent case,  a  single  witness  directly  proving  the  material 
allegation  in  the  bill;  and  it  is  impossible,  therefore,  that 
the  circumstantial  proof  relied  on  could  have  shaken  the 
legal  title  of  Wade,  and  the  positive  denial  of  the  trust 
contained  in  his  answer.  If,  then,  the  testimony  be  not 
sufficient  to  enable  Rufus  Jenison  to  establish  the  trust 
in  question,  a  fortiori,  it  can  not  enable  the  complainants, 
his  creditors,  to  do  so.  In  deciding  the  title  of  Wade  to 
be  valid,  we  put  an  end  to  the  complainant's  claim  to  the 
land  under  consideration.  Wade,  as  the  legal  and  bene- 
ficial owner,  had  a  right  to  make  a  present  of  the  land  to 
Samuel  Jenison,  and" the  latter  has  a  right  to  hold  it,  with- 
out either  of  them  being  accountable  to  the  creditors  of 
Rufus  Jenison. 

The  next  question  to  be  examined  is,Whether  the  land 
purchased  by  Samuel  Jenison  from  George  Dolbair  is  sub- 
ject to  the  judgments  against  Rufus  Jenison? 
Vol.  II.— 34  (529) 


449-450    SUPREME  COURT  OF  INDIANA. 

Jenison  and  Others  v.  Graves  and  Anotlier. 

The  charge  is,  that  this  land  was  bought  by  Samuel 
Jenison,  a  minor,  for  his  father,  Rufus  Jenison  ;  and  that 
tlie  latter  pa.id  for  it,  and  is  the  real  owner.  This  is  op- 
posed, 1st,  by  the  deed  from  Dolbair  to  Samuel  Jenison, 
in  which  the  purchase-money  is  stated  to  have  been  paid 
by  the  grantee;  and  2d,  by  the  express  denial  of  these 
defendants.  The  answer  of  Samuel  Jenison  avers,  that 
he  bought  the  land  for  himself,  after  he  became  of  lawful 
age,  in  opposition  to  his  father's  advice;  and  that  he  paid 
for  it  with  his  own  labor  and  funds.  The  complainants 
produce  no  evidence  that  can,  in  the  slightest  degree, 
affect  this  defence.  They  principally  rely  upon  some 
work,  done  by  two  of  Rufus  Jenison's  minor  sons,  in  aid 
of  Samuel  Jenison,  whilst  he  was  clearing  land  for  Dol- 
bair, in  part  payment  for  the  land  previously  purchased. 
These  young  men  who  thus  assisted  their  brother,  it  is 
proved,  had  the  permission  of  their  father  to  work  and 
trade  for  themselves ;  and  they  were  employed  by  their 
brother  Samuel  to  assist  him  in  the  peformance  of  this 
work,  and  were  paid  for  their  labor  by  him.  No  title, 
surely,  can  be  claimed  for  Rufus  Jenison  to  any  part  of 
this  land,  on  the  ground  of  his  having  paid  a  part  of  the 
consideration  by  this  labor  of  his  minor  sons. 

The  father,  it  is  true,  may  claim  the  services  of 
[*450]  his  children,  *whilst  they  are  under  lawful  age, 
and  are  supported  by  him.  1  Bl.  Comm.  453. 
But,  we  conceive,  he  may  relinquish  that  claim  at  any 
time,  and  when  he  does,  the  prolits  of  his  children's  labor 
belong  to  themselves.  The  property  acquired  by  a  minor 
son,  in  such  a  case,  is  as  much  his  own,  as  if  it  were  a 
legacy  bequeathed  to  him ;  and  it  can  not  be  seized  by 
the  creditors  of  the  father.  Besides,  these  young  men 
were  employed  by  their  brother,  Samuel  Jenison,  and  per- 
formed the  labor  for  him;  and  even  if  the  father  were 
entitled  to  the  profits  of  their  work,  still  he  cculd  have 
no  claim  for  the  same  l)ut  on  the  person  who  had  em- 
ployed  them.     It  would   have   been   the  same  case  had 

(530) 


NOVEMBER  TERM,  1831.  450-451 

Jenison  and  Others  v.  Graves  and  Another. 

Rufus  Jenison  himself  been  hired  by  his  son  Samuel  to 
do  this  work,  in  part  payment  for  the  land;  or  had  he 
even,  bona  fide,  lent  Samuel  a  sum  of  money  to  assist  him 
in  the  payment.  In  neither  of  these  cases  would  the 
father  be  considered  as  paying  part  of  the  purchase- 
money,  from  which  a  trust  jjro  tanto  could  result  to  him. 
His  claim  would  be  alone  on  his  son  for  the  work  done  or 
the  mone}'  lent. 

We  conclude,  therefore,  that  the  complainants  have  na 
claim  on  the  land  purchased  of  Dolbair  by  Samuel  Jenison. 

The  third  question  in  this  cause  is,  Have  the  complain- 
ants any  claim  on  the  land  bought  in  the  name  of  Stephen 
Brown  ? 

There  are  two  tracts  of  land  charged  in  the  bill  to  have 
been  purchased  by  Rufus  Jenison  with  his  own  money, 
and  the  titles  to  have  been  fraudulently  taken  by  him  in 
the  name  of  Brown.  This  charge  is  denied  by  the  an- 
swers of  these  defendants,  Rufus  Jenison  and  Brown.  Of 
one  of  the  tracts  of  land  they  have  no  knowledge.  The 
other  was  bought  for  Brown,  according  to  the  answers, 
in  the  name  and  with  the  money  of  Brown,  by  his  agent, 
Rufus  Jenison.  To  avoid  the  statement  in  the  answers, 
viz.,  that  Brown  furnished  the  purchase-money,  the  com- 
plainants say,  the  money  was  lent  by  him  to  Rufus  Jeni- 
son, and  has  been  repaid  to  him  by  the  labor,  for  a  year, 
of  one  of  the  minor  sons  of  Rufus  Jenison.  The  only 
proof  on  this  subject  is,  that  soon  after  the  purchase, 
Rufus  Jenison,  Junior,  a  minor  son  of  Rufus  Jenison;  did 
work  a  year  for  Brown.  But  it  is  also  in  evidence,  that 
this  labor  was  for  the  young  man's  own  benefit,  he  hav- 
ing, at  the  time,  a  general  permission  from  his  father  to 
work  for  himself.  The  contract  between  young  Jenison 
and  Brown  was,  that  the  former  should  receive 
[*451]  *froiB.  the  latter  100  dollars  for  the  year's  w^ork, 
to  be  paid  in  land  or  money.  Brown,  afterwards, 
paid  the  young  man  in  money  for  the  work  he  had  done, 
who  gave  about  one-half  of  the  amount  to  his   father, 

(581) 


451  SUPREME  COURT  OF  INDIANA. 

Jenison  and  Others  v.  Graves  and  Another. 

Rufus  Jenison,  and  expended  the  other  half  for  clothes 
and  other  necessaries  for  himself.  This  transaction  is, 
therefore,  very  satisfactorily  explained;  and  the  inference 
which  the  complainants  would  draw  from  it,  viz.,  that  the 
money  was  Rufus  Jenison's  which  paid  for  the  land 
bought  in  Brown's  name,  has  no  foundation  in  the  facts 
of  the  case. 

We  come  now  to  the  last  point  in  this  tedious  cause. 
The  bill  charges  Samuel  Jenison  and  Stephen  Brown, 
with  concealing,  or  converting  to  their  own  use,  the  per- 
sonal property  of  Rufus  Jenison,  for  the  purpose  of  de- 
frauding his  creditors.  There  is  no  doubt,  that  if  these 
defendants  have  fraudulently  placed  any  of  the  goods  of 
Rufus  Jenison  out  of  the  reach  of  the  complainants'  execu- 
tions, the}'  may  be  compelled  to  account  for  the  property 
in  a  Court  of  chancery.  Hendricks  v.  Rohinson,  2  Johns. 
C.  R.  283,  296.  This  part  of  the  bill,  however,  like  the 
other  parts  ot  it  already  noticed,  is  not  sustained  by  the 
evidence.  The  charge  is  denied,  in  their  answers,  by  these 
defendants.  Brown  and  Samuel  Jenison.  There  is  no 
evidence  whatever,  on  this  subject,  against  Brown.  It 
appears,  with  respect  to  Samuel  Jenison,  that,  about  the 
time  he  became  of  age,  he  bought  a  mare  of  Moultin, 
which  he  kept  on  the  farm  occupied  by  his  father.  An 
execution  in  favor  of  one  of  the  complainants  was  levied 
on  this  mare,  but.  on  a  trial  of  the  right  of  property,  she  was 
adjudged  to  be  Samuel  Jenison's.  The  answer  also  of 
Samuel  Jenison,  avers  the  mare  to  be  his  own,  and  to 
have  been  paid  for  by  himself;  and  there  is  no  proof  to 
the  contrary.  It  further  appears  that  Samuel  Jenison  did, 
at  one  time,  buy  the  personal  property  belonging  to  his 
father,  and  then  lease  it  to  him,  with  the  fraudulent  intent 
of  placing  the  same  beyond  the  reach  of  executions  against 
liis  father.  The  scheme,  however,  did  not  succeed.  The 
})roperty  was  afterwards  levied  on  and  sold,  bv  virtue  of 
an  execution  in  favor  of  one  of  tlie  complainants  against 
Rufus  Jenison.    The  contemplated  fraud,  therefore,  failed 

(532) 


NOVEMBER  TERM,  1831.  452 

Jenison  and  Others  v.  Graves  and  Another. 

in  its  purpose  ;  and,' of  course,  the  complainants  sustained 
no  injury  by  it.  It  is  true,  the  proceeds  of  this  sale 
[*452]  appear  to  have  been  afterwards  paid  over  by  *the 
officer  to  Samuel  Jenison,  for  rent  due  to  him  as 
landlord  of  the  premises  on  which  the  debtor  lived.  But 
as  to  that,  no  fraud  was  proved.  Samuel  Jenison  was, 
as  has  been  already  shown,  the  bona  fide  owner  of  the 
farm  on  which  his  father  lived,  and  had  a  right  to  claim 
the  proceeds  of  the  execution  sale,  in  payment  of  the  rent 
due  to  him. 

There  is  clear  proof  of  fraudulent  purchases  of  Rufus 
Jenison's  personal  property  by  Pattengall  and  Atherton, 
as  charged  in  the  bill  ;  but  it  is  not  shown  that  these 
fraudulent  transactions  benefited  any  of  the  defendants, 
or  injured  either  of  the  complainants.  The  property,  after 
these  purchases,  continued,  as  before,  in  Rufus  Jenison's 
possession ;  and  was  subsequently  sold,  on  an  execution 
against  him,  issued  by  one  of  the  complainants. 

"We  have  now  gone  through  the  whole  of  this  cause,  and 
are  satisfied  that  neither  the  land  purchased  for  Wade  by 
Rufus  Jenison — nor  the  land  purchased  for  himself  by 
Samuel  Jenison — nor  the  land  purchased  for  Brown  by 
Rufus  Jenison — is  subject  to  the  judgments  of  the  com- 
plainants against  Rufus  Jenison.  We  are  also  satisfied, 
that  no  personal  property  has  been  fraudulently  protected 
from  the  complainants'  executions  against  Rufus  Jenison, 
either  by  Samuel  Jenison  or  by  Brown.  The  opinion  of 
this  Court,  therefore,  is — that  the  complainants  have  no 
foundation  for  their  bill ;  and  that  the  same  should  have 
been  dismissed  by  the  Circuit  Court,  at  the  costs  of  the 
complainants. 

Per  Curiam. — The  decree  is  reversed  with  costs.  Cause 
remanded  to  the  Circuit  Court,  with  directions  to  dismiss 
the  bill,  &c. 

Broum,  Morrison  and  Casivell,  for  the  appellants. 

Fletcher  and  Gregg,  for  the  appellees. 

(533) 


452-453    SUPREME  COURT  OF  INDIANA. 


Doe,  on  the  Demise  of  Brown  and  Others,  v.  Owen. 


Doe,  on  the  Demise  of  Brown  and  Others,  i'.  Owen. 

Ejectment — Plaintiff — Costs — Practice. — If,  in  ejectment,  there  be  a 
verdict  and  judgment  for  the  defendant,  the  judgment  for  costs  must  be 
entered  against  the  nominal  plaintiff,  and  not  against  the  lessor. 

Same — Amendment  of  Transcript. — But  a  judgment  in  such  case,  against 
the  lessor,  being  defective  only  in  form,  maybe  amended  on  motion 

[*453]    in  the  Court  below.     Even  after  the  cause  is  removed  by  -writ  of 

error,  the  proceedings   in  the  Supreme   Court   will  be   stayed,   on 

motion,  till  the  amendment  can  be  made  ;  and,  after  the  amendment,  a 

new  transcript  may  be  obtained,  on  suggestion  of  diminution,  and  the 

judgment  affirmed  (a). 

ERROR  to  the  Posey  Circuit  Court. 

Stevens,  J. — This  was  an  action  of  trespass  and  eject- 
ment, brought  by  the  plaintiff  in  error  against  tlie  defen- 
dant in  error,  to  recover  the  possession  of  certain  lands  !=et 
forth  and  described  in  the  declaration.  The  parties  entered 
into  the  common  consent  rule,  and  an  issue  was  joined 
on  the  plea  of  not  guilty.  A  jury  trial  was  had,  and  a 
correct  and  resjular  verdict  found  in  favor  of  the  defend- 
ant; on  which  the  Court  rendered  judgment  in  favor  of 
the  defendant,  that  he  should  recover  of  the  lessors  of  the 
plaintiff  his  costs,  &c.  To  reverse  this  verdict  and  judg- 
ment this  writ  of  error  is  prosecuted. 

Several  errors  are  relied  on  by  the  plaintiff,  but  we 
think  none  are  well  taken  except  the  last  one,  which  is, 
that  the  judgment  should  have  been  against  the  nominal 
plaintiff,  and  not  against  the  lessors  of  the  plaintiff.  This 
error  is  well  taken ;  the  judgment  should  have  been 
against  the  nominal  plaintiff  and  not  against  the  lessors 
(1).  This  being  mere  matter  of  form,  the  defendant 
might  have  had  it  amended,  on  motion,  in  the  Court  be- 
low, even  after  the  transcript  was  transmitted  to  this 
Court.  And  the  amendment  being  in  the  form  of  the 
judgment  only,  this  Court  would  have  stayed  the  pro- 
ceedings, on   motion,  until  the  amendment  could  have 

(a)  40  Ind.  263 ;  41  Id.  543. 

(534) 


NOVEMBER  TERM,  1831.  453-454 

Scott  V.  Mortsinger. 

been  made  in  the  Court  below;  a  diminution  could  then 
liave  been  alleged,  and  a  transcript  of  the  amended  record 
brought  up  on  certiorari,  and  a  reversal  of  the  judgment 
have  thus  been  prevented  (2).  The  defendant  has  not 
thought  proper  to  take  that  course,  and  we  must  act 
upon  the  record  as  it  stands. 

Per  Curiam. — The  judgment,  as  to  the  lessors,  is  re- 
versed.    Cause  remanded,  &c. 

Crawford  and  Hall,  for  the  plaintiff. 

Judah  and  Battell,  for  the  defendant. 

(1)  The  law  is  now  otherwise.  By  a  late  statute,  the  defendant  in  ejec- 
ment,  if  the  judgment  be  in  his  favor,  may  take  a  judgment  for  costs  against 
the  lessor  of  the  plaintiff.  Stat.  1833,  p.  113.  Vide  note  to  Eaton  v.  Bene- 
field,  ante,  p.  54. 

(2)  Vide  note  to  Sanger,  Advi'r.  v.  Walker  etai,  vol.  1,  of  these  Rep.  2ol. 


[*454]  *ScoTT  V.  Mortsinger. 

Malicious  Prosecution — Perjury — Evidence. — Case  by  A.  against  B. 
Counts  in  malicious  prosecution  for  perjury,  and  in  slander  for  words 
charging  the  same  crime.  Plea,  that  A.  had  committed  the  perjury  al- 
leged. Held,  that  B.  might  prove,  on  trial,  that  A.  had  given  advice  as 
to  the  best  mode  of  commencing  the  suit  against  B.  in  support  of  which 
A.  was  said  to  have  afterwards  committed  perjury ;  and  might  also  prove 
that  A.  had  received  information,  before  he  gave  his  evidence,  tending 
to  show  the  want  of  any  foundation  to  the  suit  against  B. 

Same — Defence — Probable  Cause. — Held,  also,  that  the  defendant,  under 
the  plea,  in  this  case,  might  show  that  there  was  a  probable  cause  for  his 
prosecution  against  the  plaintiff. 

Perjury — What. — If  a  witness,  with  an  intention  to  deceive  the  jury, 
swear  so  as  to  make  an  impression  on  their  minds  that  a  fact  material  in 
the  cause  is  different  from  what  it  really  is,  and  from  what  he  knows  it 
to  be,  he  is  guilty  of  perjury. 

Presumption — Action  of  Court. — If,  after  the  examination  of  a  witness 
is  closed,  his  re-examination  be  asked  for  and  refused,  this  Court  will 
presume  such  refusal  to  be  correct,  unless  the  records  show  that  there 
was  a  good  cause  for  the  re-examination. 

Slander — Malice — Evidence. — Tlie  plaintiff,  in  the  above-mentioned 
cause,  in  order  to  show  malice  in  the  defendant,  had  a  right  to  prove 

(535) 


454-455   SUPREME  COURT  OF  INDIAIJ^A. 

Scott  V.  Mortsinger. 

that  the  slanderous  words,  charged  in  the  declaration,  had  been  spoken 
after,  as  well  as  before,  the  commencement  of  the  suit. 

ERROR  to  the  Washington  Circuit  Court. 

M'KiNNEY,  J. — Trespass  on  the  case.  The  declaration 
contains  four  counts:  two  charging  a  maUcious  prosecu- 
tion, and  two  in  slander.  The  counts  for  a  malicious 
prosecution  are  founded  upon  the  plaintiff's  arrest  and 
acquittal  on  a  charge  of  perjury,  said  to  have  been  com- 
mitted on  the  trial  of  a  cause  before  a  justice  of  the  peace, 
in  which  Jacob  Laughehour  was  plaintiff,  and  the  defend- 
ant, John  Humphrey,  Albert  Lamb  and  John  Trow- 
bridge, were  defendants;  those  in  slander,  on  a  charge  of 
perjury,  A  special  plea  of  justification  was  filed  to  the 
whole  declaration,  and  a  verdict  and  judgment  were  ren- 
dered for  the  defendant.  A  motion  for  a  new  trial  was 
overruled,  and  two  several  bills  of  exceptions  were  taken 
to  the  opinion  of  the  Court. 

The  plaintiff  in  error  assigns  several  reasons  for  revers- 
ing the  judgment. 

1.  "  The  Court  erred  in  permitting,  for  the  purpose  of . 
proving  maUce,  in   the   plaintiff'  toward  the   defendant, 
several  witnesses  to  state  that  the  plaintiff'  had  advised 
Laughehour  to  sue  the  defendant.  Lamb,  Humphrey  and 
Trowbridge,  all  in  one  suit  for  the  purpose  of  preventing 

one  being  a  witness  for  the  other.  The  plaintiff" 
[*455]  contends  that  this  was  dehors  *the  issue  and  inad- 
missible. The  plea  charged  the  plahrtiff""with  per- 
jury. Collateral  facts  are  admissible  to  prove  intention, 
malice,  or  guilty  knowledge.  Where  the  intention  does 
not  a[)pear  from  the  transaction  itself,  it  must  be  inferred 
from  other  facts  and  circumstances.  Evidence  of  the 
mind  and  intention  is  afforded  by  the  general  conduct. 
2  Stark,  on  Ev.  378,  382.  Corrupt  intention  is  one  of  the 
constituents  of  the  crime  of  perjury.  In  the  admission 
of  this  evidence  it  does  not  appear  that  the  Court  erred. 

2.  "The  Court  permitted  Humphrey,  who  was  one  of 
the  defendants  in  the  suit  before  the  justice  of  the  peace, 

(530) 


NOVEMBER  TERM,  1831.  455-456 

Scott  r.  Mortsinger. 

to  prove  that  he  and  the  defendant,  Mortsinger,  told  the 
plain tift'  when  he  came  to  look  at  the  tree,  and  the  situa- 
tion of  the  heifer  under  it,  that  the  heifer  was  not  there 
when  the  tree  was  felled."  The  action  before  the  justice 
of  the  peace  was  brought  to  recover  damages  for  the  value 
of  a  heifer,  charged  to  have  been  killed  by  the  defend- 
ants. Upon  an  indictment  against  the  plaintiff  for  the 
offence  charged  in  the  plea,  Humphrey  would  be  a  com- 
petent witness.  To  sustain  such  indictment,  it  would  be 
necessary  to  establish  the  corrupt  intention.  Circum- 
stances showing  it  would  be  admissible.  We  think  the 
evidence  was  for  the  jury. 

3.  It  is  assigned  for  error,  that  the  Court  refused  to 
instruct  the  jury  "that  the  question  of  probable  cause — 
that  is,  whether  Mortsinger,  the  defendant,  had  an}'  prob- 
able cause  to  prosecute  Scott,  the  plaintiff,  for  perjury — 
does  not  arise  in  the  present  case,  and  the  jury  have  noth- 
ing to  do  with  it,  inasmuch  as  the  defendant  had  pleaded 
justification  to  the  whole  declaration."  The  plaintiff  has 
relied,  with  much  confidence,  upon  the  refusal  of  the 
Court  to  give  this  instruction.  We  will  examine  the 
principle  for  which  he  contends.  Malice,  and  tlie  want 
of  probable  cause,  must  both  be  established  in  an  action 
for  malicious  prosecution.  White  v.  Dinghy,  4  Mass.  Rep. 
433  ;  Lindsay  v.  Lamed,  17  ib.  190.  This  is  said  to  result 
as  well  from  public  convenience  as  from  policy.  Offend- 
ers would  not  be  prosecuted  if  acquittal  was  attended  with 
danger.  A  well-founded  suspicion  of  guilt  in  the  prose- 
cution of  an  oftender,  is  a  protection  against  damages.  A 
prosecutor  is  protected  by  the  law,  however  malicious  his 

private  motives  may  have  been,  provided  he  had 
[^456]    probable  cause.     2  Stark  on  Ev.  910.     *Under  the 

general  issue,  a  defendant  may  justify  the  proceed- 
ings had  against  the  plaintift",  and  show  that  he  had  proba- 
ble cause.  2  Phillips  on  Ev.  115.  When  he  meets  the 
case  by  a  special  plea  of  justification,  affirming  the  plain- 
tiff to  be  guilty  of  the  crime  for  which  he  was  prosecuted, 

(537) 


456  SUPREME  COURT  OF  INDIANA. 


Scott  I.  Mortsinger. 


the  burthen  of  proof  devolves  upon  him.  A  failure,  how- 
ever, to  sustain  the  plea,  and  the  want  of  probable  cause, 
present  separate  and  distinct  questions.  The  first  relates 
to  the  pending  action,  and  the  latter  to  the  grounds  of  the 
prosecution.  As  the  defendant,  under  the  general  issue, 
could  justify  the  proceedings  and  show  that  he  had  proba- 
ble cause,  it  would  seem  that  it  could  also  be  done  under 
a  special  plea.  The  position  the  plaintiff  has  assumed  is 
certainly  too  broad.  The  jury  to  whom  such  a  case  is 
submitted,  in  giving  it  consideration,  must  have  their  at- 
tention fixed  upon  the  character  of  the  charge.  If,  upon 
such  consideration,  it  should  appear  there  was  probable 
cause,  it  would  be  their  duty  to  find  for  the  defendant. 
"We  think  the  case  of  Sterling  v.  Adams  and  others,  5  Bay, 
411,  sustains  the  Court  below,  in  refusing  to  give  the  in- 
structions. 

The  4th  error  is  directed  to  the  following  instructions 
given  to  the  jury.  1.  "That  if  the  jury  believe  that  the 
plaintiff  swore  on  the  trial  set  out  in  the  plea,  so  as  to 
make  an  impression  on  the  jury  different  from  what  the 
facts  in  the  case  really  were  and  he  knew  them  to  exist 
differently  from  what  he  represented  them  to  the  jury, 
and  intentionally  intended  to  deceive  the  jury  in  giving 
his  testimony  in  the  matter  set  out  in  the  plea  of  the  de- 
fendant, he  is  guilty  of  perjury.  2.  That  if  the  plaintiff' 
kept  back  anything  which  was  known  to  him  in  the 
matter  set  forth  in  the  plea,  and  swore  so  as  to  make  a 
different  impression  from  what  the  facts,  as  known  to 
him,  would  have  made  if  disclosed,  and  he  did  so,  or  swore 
in  a  manner  above  knowingly,  it  is  perjury."  These  in- 
structions, taken  together,  amount  to  the  proposition, 
that  if  the  plaintiff,  on  the  trial  before  the  justice  of  the 
peace,  swore  falsely  in  fact  and  corruptly  and  wickedly 
against  his  better  knowledge,  he  was  guilty  of  perjury. 
The  instructions,  although  not  concise,  constitute  the 
definition  of  the  crime.  The  Court  does  not  appear  to 
have  applied  any  part  of  the  testimony  to   the   specific 

(588) 


NOVEMBER  TERM,  1831.  456-457 


Scott  V.  Mortsinger. 


charge  in  the  plea.  If  testimony  had  been  introduced 
inapplicable  -to  the  issue,  its  exclusion  would  not  have 
been  in  conflict  with  the  instructions  thus  given. 
[*457]  *Error  is  also  said  to  have  intervened  by  the 
Court's  refusal  to  permit  a  witness  to  be  called 
back  for  re-examination  who  had  retired.  The  record 
does  not  show  the  points  on  which  it  was  wished  that  the 
witness  should  be  re-examined.  We  are  therefore  unable 
to  say  whether  the  testimony  was  material  or  not.  In 
the  absence  of  the  ground  upon  which  it  acted,  we  pre- 
sume that  the  Circuit  Court  acted  agreeably  to  a  sound 
ai  d  correct  view  of  the  case.  There  must  be  some  limi- 
tation to  the  examination  of  a  witness.  After  the  exam- 
ination and  dismissal  of  a  witness,  occasions  may  occur 
which  would  justify  a  re-examination.  The  case  of  Cur- 
ren  v.  Connery,  reported  in  5  Binney,  488,  presents  such 
an  one.  The  record,  in  that  case,  disclosed  the  point  to 
which  the  re-examination  was  directed.  It  was  material 
to  the  issue. 

The  last  error  assigned  is  the  rejection  of  evidence  that 
the  defendant,  both  before  and  since  the  institution  of  the 
action,  had  spoken  of  the  plaintiff  the  same  slanderous 
words  laid  in  the  declaration.  It  is  settled  that  to  show 
the  malicious  motive  of  the  defendant,  a  plaintift"  may  give 
in  evidence  words  that  are  actionable,  though  not  speci- 
fied in  the  declaration,  and  although  they  were  spoken 
subsequently  to  the  words  declared  upon.  2  Stark,  on 
Ev.  869.  The  plaintiff' wished  to  prove  the  speaking  of 
the  words  declared  upon,  both  before  and  after  the  insti- 
tution of  the  suit.  We  think  this  should  have  been  per- 
mitted. Under  the  general  issue  this  testimony  would 
have  been  legal.  It  is  not  excluded  by  the  special  plea. 
For  this  error  the  judgment  must  be  reversed. 

Per  Curiam. — The  judgment  is  reversed,  and  the  ver- 
dict set  aside,  with  costs.     Cause  remanded,  &c. 

Fnrnham,  for  the  plaintiff. 

Howk,  for  the  defendant. 

{bS9) 


457-458    SUPREME  COURT  OF  INDIANA. 


Morris  and  Another  v.  Price. 


Morris  and  Another  v.  Price. 

Attachment- Bond — Breach — Pleading. — A  declaration  in  debt  on  an  at- 
taciiment-bond,  after  setting  out  the  bond  and  condition,  avered  that  the 
attachment  had  been  sued  out,  brought  to  issue,  tried,  and  adjudged  to 
be  void,  without  cause,  tortious,  and  oppressive ;  and  that  the  phiintifF 
had  been  much  oppressed,  and  put  to  great  trouble  and  expense,  in  defend- 
ing himself  against  said  false,  feigned,  and  vexatious  proceedings 

[*458]  of  the  defendant.  Held,  on  ■■■'special  demurrer,  that  the  determina- 
tion of  the  attachment-suit,  the  damages  sustained,  and  the  want  of 
cause  for  the  attachment,  were  set  out  with  sufficient  certainty. 

Same — Damage — Attorney's  Fee. — Held,  also,  that  on  the  assessment  of 
damages,  the  demurrer  being  overruled,  evidence  of  the  plaintiff's  hav- 
ing paid  a  fee  to  an  attorney,  in  the  attachment-suit  was  admissible  (a). 

Practice — Demurrer — Judgment. — Held,  also,  that  on  overruling  the 
demurrer  in  such  case,  final  judgment  should  be  stayed  until,  the  truth 
of  the  breaches  assigned  are  inquired  into  and  the  damages  assessed  ; 
and  that,  after  such  assessment,  final  judgment  should  be  rendered  for 
the  debt  in  the  declaration  mentioned  with  costs,  and  execution  awarded 
for  the  damages  assessed  with  costs  (6). 

APPEAL  from  the  Rnsh  Circuit  Court. 

Stevens,  J. — This  was  an  action  of  debt  in  the  Rush 
Circuit  Court,  brought  by  the  appellee  against  the  appel- 
lants, on  a  penal  bond  conditioned  that  the  said  Levi 
Morris  should  well,  truly,  and  bona  fide,  prosecute  a  cer- 
tain writ  of  attachment,  which  he  was  about  suing  out  of 
the  Rush  Circuit  Court  against  the  goods,  chattels,  lands, 
tenements,  credits,  moneys,  and  effects  of  the  appellee, 
and  pay  to  him  all  damages  which  he  might  sustain  in 
consequence  of  said  proceedings  on  attachment,  should 
the  same  be  adjudged  t(MTions  or  oppressive.  The  decla- 
ration sets  out  the  bond  and  condition,  and  avers  that  the 
writ  of  attachment  was  sued,  out,  brought  to  issue,  and 
tried  in  the  Rush  Circuit  Court,  and  adjudged  to  be  void, 
witliout  cause,  tortious,  and  oppressive,  and  that  the 
plaintiff  was  much  oppressed,  put  to  great  costs,  trouble, 
and  expeiise,  in  defending  himself  against  said  false, 
feigned  and  vexatious  proceedings  on  attachment  of  said 

(a)   43  Ind.  486.     (b)  Supra,  359  ;  6  Ind.  387.       . 

(540) 


NOVEMBER  TERM,  1831.  458-159 

Morris  and  Another  i.  Price. 

Levi.  To  this  declaratiou  the  defendants  demurred,  and 
set  down  as  causes  of  demurrer:  "1st,  There  is  no  aver- 
ment in  the  dechiration  that  the  proceedings  on  attach- 
ment are  finally  ended ;  2d,  There  is  no  special  aver- 
ment of  any  damages  having  been  sustained,  above  the 
costs  which  defendants  would  be  bound  by  the  judgment 
at  law  to  pay ;  3d,  There  is  no  averment  that  the  pro- 
ceedings on  attachment  w^ere  without  just  and  probable 
cause,"  The  demurrer  was  overruled  and  judgment  given 
for  the  plaintifi*,  a  writ  of  inquiry  awarded,  and  damages 
assessed. 

By  a  bill  of  exceptions  it  appears  of  record  that,  after 
the  jury  was  sworn  to  assess  the  damages,  the  plaintiJEf 
offered  to  prove  that  he  had  paid  an  attorney  10  dollars 
to  defend  him  against  said  writ  of  attachment ;  to  the  in- 
troduction of  which  evidence  the  defendants  ob- 
[*459]  jected,  but  the  Court  overruled  the  ^objection, 
and  the  evidence  went  to  the  jury.  The  errors 
complained  of  are:  1st,  The  overruling  the  demurrer; 
2d,  The  permitting  the  evidence  set  out  in  the  bill  ofex- 
ceptions  to  go  to  the  jury;  and  3d,  The  rendition  of  the 
judgment  in  manner  and  form  as  it  is  rendered. 

The  whole  of  the  proceedings  in  this  case  are  some- 
what loose,  informal  and  irregular,  but  are  all  substan- 
tially good,  except  the  rendition  of  the  judgment.  On 
overruling  the  demurrer,  the  order  of  the  Court  should 
have  been  that  the  plaintiff"  should  recover  his  debt  and 
damages  on  the  occasion  of  the  detention  thereof;  but 
that  judgment  should  not  be  given  until  the  truth  of  the 
breaches  assigned  were  inquired  into  and  the  damages 
assessed.  After  that,  final  judgment  should  have  been 
rendered  for  the  plaintiff  for  the  debt  in  the  declaration 
mentioned  with  costs,  and  execution  awarded  for  the 
damages  assessed  with  costs.  1  Saunders,  58  and  note  1 ; 
3  Chitt.  PI.  280,  287;  Clark  v.  Goodwin,  July  term,  1820; 
Glidewell  et  al.  \\  M'Gaughey,  ^N'ovember  term,  1830;  1 
Blackf.  Rep.  Appendix,  437. 

(541) 


45:u-i(30    SUPREME  COURT  OF  INDIANA. 

Johnson,  Surviving  Administrator,  v.  Hawkins. 

M'KiXNEY,  J.,  naviiig  been  of  counsel  in  the  cause,  was 
absent. 

Per  Curiam. — The  judgment  is  reversed,  with  costs. 
Cause  remanded,  &c. 

Smith,  for  the  appelhints. 

Wick,  for  the  appall .:.■. 


Johnson,  Surviving  Administrator,  v.  Hawkins. 

Judgment — Excessive — Against  Administrator— Practice. — Debt  by 
A.  against  B.  administrator  of  C,  on  a  bond  of  the  intestate  for  860  dol- 
lars. Damage,  100  dollars.  Pleas,  non  esffadnm  and  plene  adminktravit. 
Yerdirt  for  the  debt,  and  for  481  dollars  and  60  cents  damages;  in  all, 
1  o41  dollars  and  60  cents.  Judgment  for  the  same,  de  bonis propriis,  with 
costs. 

Held,  that  the  judgment  is  erroneous:  1st,  because  it  is  de  bonis  propriis ; 
and,  2dly,  because  it  is  for  a  greater  sum  than  is  laid  in  the  declaration. 

Held,  also,  that  the  jury  should  have  not  only  found  the  amount  of  the  debt 
and  damages,  but  also  the  amount  of  assets  in  the  defendant's  hands. 

ERROR  to  the  Martin  Circuit  Court. 

Stevens,  J. — Debt  by  James  Hawkins  against  Julius 
Johnson,  Charles  Brown  and  Timothy  Moses,  ad- 
[*460]  ministrators  of  the  ^estate  of  Benjamin  Vanator, 
deceased,  on  a  writing  obligatory  made  by  the  de- 
ceased in  his  life  time,  for  the  payment  of  the  sum  of 
860  dollars  to  the  plaintiff.  The  damages  laid  in  the  dec- 
laration for  the  detention  of  the  debt  are  100  dollars. 
The  defendants  pleaded  two  pleas  :  first,  that  the  supposed 
writing  obligatory  was  not  the  deed  of  the  deceased  ;  and, 
secondly,  plene  aefminisiravit.  .  Issue  was  joined  on  the 
first  plea.  To  the  second  plea,  a  replication  denying  the 
plea  and  averring  that  there  were  assets  to  the  amount 
of  1,000  dollars  was  filed  and  issue  joined  thereon.  The 
verdict  was  as  follows:  "We  of  the  jury  find  for  the 
plaintiff'  the  debt  in  the  declaration  mentioned,  and  assess 
his  damage  at  481  dollars  and  60  cents,  making  in  the 

(542) 


•     NOVEMBER  TERM,  1831.  460-461 

Johnson,  Surviving  Administrator,  v.  Hawkins. 

whole  the  sum  of  1,341  dollars  and  60  cents.''  A  motion 
for  a  new  trial  was  made  and  overruled,  and  the  follow- 
ing judgment  rendered;  "It  is  therefore  considered  by 
the  Court  that  the  plaintiff  recover  of  the  defendants  the 
sum  of  860  dollars,  the  debt,  and  481  dollars  and  60  cents 
damages,  making  in  the  whole  the  sum  of  1,341  dollars 
and  60  cents,  as  by  the  jurors  aforesaid  in  manner  and 
form  aforesaid  assessed,  and  that  he  recover  his  costs." 

The  judgment  in  this  case,  being  de  bonis  projmis,  is 
erroneous.  Neither  of  the  pleas  can  be  considered  false 
within  the  defendant's  knowledge.  However,  if  this  was 
the  only  error,  time  might  be  given  for  the  Court  below 
to  amend  that  error.  Short  v.  Coffin,  5  Burr.  2730;  King, 
admW,  V.  Anthony,  adni'r,  May  terra,  1828.  The  verdict 
is  also  erroneous,  being  for  a  greater  sum  in  damages 
than  is  laid  in  the  declaration.  The  Court  below  ought 
to  have  set  it  aside,  and  granted  a  venire  de  novo,  unless 
the  plaintiff  would  have  remitted  the  excess  of  the  dam- 
ages. And  this  Court,  if  asked,  might  give  time  for  the 
remittitur  to  be  moved  and  entered  in  the  Court  below,  if 
there  were  no  other  errors.  1  Sellon's  Practice,  481 ; 
Hoits  V.  Molony,  2  IST.  Hamp.  Rep.  322;  Harris  v.  Jaffray, 
3  Har.  &  John.  546 ;  Bank  of  Kentucky  v.  AsJdey  et  al.,  2 
Peters,  329;  Cro.  Jac.  146;  Hob.  178;  Barnes,  17;  3  D. 
&  E.  349,  659,  749,  &c.  The  verdict  is  also  further  erro- 
neous. On  the  issues  of  non  est  factum  and  j^lene  admin- 
istravit,  the  jury  finding  both  issues  for  the  plaintiff  should 
have  not  only  found  the  debt  in  the  declaration,  and 
assessed  the  damages  for  the  detention  thereof,  but 
should  have  also  found  the  amount  of  the  assets  in 
r*461]  *the  hands  of  the  administrators,  they  being  liable 
■  no  further  than  for  the  amount  in  their  hands. 
Fairfax's  executor  v.  Fairfax,  5  Cranch,  19 ;  Siglar,  adm'r, 
V,  Haywood,  8  Wheat.  675;  King,  adm'r,v.  Anthony,  adm'r, 
May  term,  1828.  Vide,  also,  statutes  of  the  state  of  In- 
diana. 


(543) 


461  SUPREME  COURT  OF  INDIANA. 


Sims  and  Others  v.  Givan. 


Per  Curiam. — The  judgment   is    reversed   with    costs. 
Cause  remanded^  &c. 
Kinney,  for  the  plaintiff. 
Jiidah,  for  the  defendant. 


S[Ms  and  Others  v.  Givan. 

Witness— Interest— Competency. — No  confession  of  interest  made  bj  a 
witness,  after  a  party  is  entitled  to  his  testimony,  can  render  him  incom- 
petent. 

Same. — To  exclude  a  witness  on  the  ground  of  interest,  he  must  appear  to 
be  interested  in  favor  of  the  jxirty  who  calls  him. 

Evidence — Question  as  to  Sufficiency. — If  the  defendant  believes  the 
plaintiff's  evidence  to  be  insufficient  to  sustain  the  action,  he  should  ob- 
tain the  decision  of  the  Circuit  Court  on  the  subject,  by  asking  instruct- 
ions to  the  jury,  by  a  motion  for  a  new  trial,  or  in  some  other  way. 
Without  some  such  previous  proceeding,  though  the  evidence  be  set  out  in  a 
bill  of  exceptions,  the  Supreme  Court  can  take  no  notice  of  the  question. 

Witness— Incompetency — Practice. — If,  in  the  course  of  a  witness's  ex- 
amination, he  appears  from  his  own  answers  to  be  incompetent,  the  party 
against  whom  the  evidence  is  given,  should  move  to  strike  out  the  testi- 
mony. But,  if  no  objection  be  made  below  to  the  evidence,  its  admission 
can  not  be  assigned  for  error. 

ERROR  to  the  Hendricks  Circuit  Court. 

Blackford,  J. — Tliis  was  an  action  on  the  case  by  Givan 
against  Sims  and  others.  The  canse  of  action  declared  on 
is,  that  Givan  was  the  owner  of  a  boat  and  a  carofo  of  salt ; 
that  in  an  attempt  to  ascend  White  River,  between  Spen- 
cer and  Indianapolis,  this  property  was  lost;  and  that  the 
loss  was  occasioned  by  a  dam  obstructing  the  navigation 
of  the  river,  which  the  defendants  had  wrongfully  erected. 
To  this  action,  the  defendants  pleaded  not  guilty.  On 
the  trial  of  the  cause,  the  defendants  objected  to  one  of 
tiie  plaintiff's  witnesses,  by  the  name  of  Jones,  as  being 
interested,  and  undertook  to  prove  his  interest  by  other 
witnesses.  The  whole  object  of  the  prc^of  was,  to  show 
that  Jones  himself  was  the  owner  of  the  property  lost 

(544) 


NOVEMBER  TERM,  1831.  461-462 


Sims  and  Others  v.  Givan. 


This  testimony  was  rejected  by  the  Circuit  Court ; 
[*462]  and  *the  phxintiiF  was  permitted  to  examine  the 
witness.  The  evidence  of  Jones  is  set  out  in  the 
record,  and  is  said  to  be  all  the  testimony  given  by  tlie 
plaintiff,  relative  to  his  property  in  the  boat  and  salt.  The 
jury  acquitted  one  of  the  defendants,  and  found  a  verdict 
of  guilty  against  the  others.  A  judgment  was  rendered 
by  the  Court,  in  conformity  with  the  verdict. 

To  reverse  this  judgment,  it  is  contended,  first,  that  the 
evidence  rejected  was  sufficient  to  prove  Jones  to  be  in- 
terested; secondly,  that  the  plaintiff's  evidence  did  not 
show  his  ownership  of  the  property  lost;  thirdly,  that  the 
testimony  of  Jones  himself  shows  him  to  be  interested. 

The  first  objection  to  the  judgment  is  not  sustainable. 
A  part  of  the  evidence  offered  to  prove  the  witness's  in- 
terest, consisted  of  declarations  made  by  him  after  the 
cause  of  action  arose.  These  declarations  were  of  no  con- 
sequence. Xo  confession  of  interest  made  by  a  witness, 
after  a  party  is  entitled  to  his  testimony,  can  render  him 
incompetent.  Pollock  v.  Gillespie,  2  Yeates,  129.  Inde- 
pendently, however,  of  this  consideration,  applicable  only 
to  a  part  of  the  proof  offered,  there  is  a  valid  objection 
which  applies  to  it  all.  To  exclude  a  witness  on  the 
ground  o.f  interest,  he  must  appear  to  be  interested  in  favor 
of  the  party  who  calls  him.  Peake's  Ev.  160.  The  de- 
fendants only  propose  to  prove  that  the  property  lost 
belonged  to  the  witness.  That  evidence  was  not  sufficient 
to  exclude  him.  If  the  property  belonged  to  the  witness, 
it  is  not  to  be  presumed  that  he  would  wish  to  see  the 
compensation  for  its  loss  go  into  the  pocket  of  the  plain- 
tiff'. His  feelings  would  more  [>robably  be  the  other  way. 
He  might  therefore  not  be  a  competent  witness,  if  called 
by  the  defendants  ;  and  yet,  at  the  same  time,  be  the  best 
the  plaintiff  could  produce. 

In  the  case  of  an  indorsee  against  the  acceptor  of  a  bill, 
the  defendant  called  the  indorser  to  prove  that  the  bill 
belonged  to  the  indorser  himself,  and  not  to  the  plaintiff. 
A^OL.  II.— 35  (545) 


462-463    SUPREME  COURT  OF  INDIANA. 

Sims  nnd  Others  v.  Givan. 

The  witness  was  iidjadged  to  be  interested  to  defeat  the 
action,  and  was  accordingly  rejected.  Bucklandv.  Tankard, 
5  T.  R.  578.  This  autnority  proves,  that,  had  the  witness 
ill  the  case  before  us  been  called  by  the  defendants,  the 
plaintiff  might  have  objected,  that  as  the  witness  claimed 
the  property  lost,  he  was  interested  in  defeating  the 
action.  But  this  reason  for  the  witness's  incompetency, 
when  called  by  the  defendants,  shows  that  they 
[''^63]  ^could  not  object  to  him  as  the  plaintiff's  wit- 
ness— his  interest  being  in  their  favor  and  against 
the  party  calling  him.  The  legatee  in  a  will,  for  example, 
is  not  a  competent  witness  at  common  law  to  support  the 
will,  because  it  is  his  interest  to  support  it;  but  he  is  a 
good  Avitness  to  disprove  the  will,  for  he  then  swears 
against  his  interest.  Oxenden  v.  Penericc,  2  Salk.  691.  In 
a  suit  against  a  sheriff  for  the  misconduct  of  his  bailiff, 
the  latter  is  an  incompetent  witness  for  the  defendant, 
it  being  his  interest  to  defeat  an  action  the  success  of 
which  makes  him  liable  to  his  principal.  But  the  bailiff 
is  an  unobjectioiuible  witness  in  such  a  case,  when  called 
by  the  plaintiff,  because  his  interest  is  against  the  action. 
Arch.  Plead.  439.  These  authorities  show  that  the  defen- 
dants' objection  to  the  witness  is  without  foundation. 
The  witness's  interest,  arising  from  his  claim  to  the  pro- 
perty lost,  is  against  the  action,  and  can  be  no  objection 
to  him,  when  called  by  the  plaintiff. 

There  was  no  proof  offered  that  Jones  was  to  have  any 
part  of  the  damages  which  might  be  recovered;  or  that 
he  was  to  be  liable  to  the  plaintiff  if  the  action  failed ;  or 
that  he  had  any  other  interest  in  the  plaintiff's  success. 
The  objection  made  to  his  competency  was,  therefore,  cor- 
rectly overruled.  The  most  of  the  evidence  offered  to 
prove  the  incompetency  of  Jones  as  a  witness,  and  prop- 
erly rejected  as  inadmissible  for  that  purpose,  was  legal 
testimony  for  the  defendants  on  the  trial  of  the  merits. 
If  they  could  prove  that  the  property  belonged  to  Jones, 
and  not  to  the  plaintiff,  they  would  defeat  the  plaintiff's 

(546) 


NOVEMBER  TERM,  1831.  463-464 

Sims  and  Others  v.  Givan. 

action,  by  showing  he  had  no  right  to  recover.  In  that 
way  alone  they  were  entitled  to  the  admission  of  the  evi- 
dence referred  to;  and  it  does  not  appear  that  that  right 
was  denied  them. 

The  next  objection  to  the  judgment  is,  that  there  was 
not  sufficient  proof  that  the  property  lost  belonged  to  the 
plaintiff.  The  evidence  given  on  this  point  is  set  out  in 
the  record  by  a  bill  of  exceptions ;  but  no  opinion  of  the 
Circuit  Court,  with  respect  to  its  sufficiency,  appears  to 
have  been  expressed  or  asked  for.  The  defendants,  if 
they  believed  the  evidence  insufficient  to  sustain  the  ac- 
tion, should  have  obtained  a  decision  of  the  Circuit  Court 
on  the  question,  by  asking  instructions  to  the  jury,  or  by 
a  motion  for  a  new  trial,  or  in  some  other  mode. 
[*464]  *Without  some  such  previous  proceeding,  it  is 
impossible  for  this  Court  to  take  any  notice  of  the 
subject. 

The  last  objection  to  the  judgment  is,  that  an  incom- 
petent witness  was  examined,  as  appears  by  his  own  evi- 
dence on  the  record.  The  practice  in  these  cases  is,  that 
if,  in  the  course  of  the  witness's  examination,  he  appears 
from  his  own  answers  to  be  incompetent,  the  opposite 
party  moves  to  strike  out  his  testimony.  There  was  no 
motion  of  this  kind  made  in  the  Circuit  Court  by  the  de- 
fendants ;  but  they  have  chosen  to  submit  the  objection, 
in  the  first  instance,  to  the  consideration  of  this  Court. 
We  have  no  authority,  under  those  circumstances,  to  ex- 
amine the  question. 

The  judgment  in  favor  of  the  plaintiff  below  must  be 
affirmed. 

Pel'  Curiam. — The  judgment  is  affirmed,  with  5  pt-r  cent. 
damages  and  costs. 

Fletcher  and  Gregg,  for  the  plaintiffs. 

Wick,  for  the  defendant. 


(547) 


464-465    SUPREME  COURT  OF  INDIANA. 


Lurton  v.  Carson. 


LuRTON  V.  Carson. 

Evidence — Sufficiency — Record — Bill  of  Exceptions. — If  a  motion 
for  new  trial,  made  on  the  ground  tliat  the  verdict  is  unsupported  by  the 
evidence,  be  overruled,  and  the  opinion  be  excepted  to, — the  bill  of  ex- 
ceptions must  show  that  it  contains  all  the  evidence  given  in  the  cause  (a). 

Same — Weight  of. — If  the  evidence  be  contradictory,  and  there  be  ground 
for  an  honest»difference  of  opinion  as  to  the  propriety  of  the  verdict,  the 
refusal  to  grant  a  new  trial  is  not  error  (6). 

ERROR  to  the  Posey  Circuit  Court. 

M'KiNNEY,  J. — Action  of  trespass  and  false  imprison- 
ment.    Verdict  and  judgment  for  the  plaintiff. 

A  bill  of  exceptions  was  taken  to  the  opinion  of  the 
Court,  overruling  a  motion  for  a  new  trial.  The  biH'con- 
tains  the  testimony  of  several  witnesses,  but  does  not 
show  that  it  presents  all  the  testimony  given  on  the  trial. 
This  is  necessary.  If  it  does  not  appear,  we  will,  agree- - 
ably  to  the  case  of  Meno  v.  Crane,  May  term,  1829,  of  this 
Court,  presume  that  the  Circuit  Court  acted  correctly.  To 
enable  us  to  say  whether  the  Court  below  was  correct  in 
its  refusal  to  grant  a  new  trial,  it  is  obvious  that  we  should 
be  in  possession  of  all  the  testimony  in  the  case. 
pi'465]  *Thetestimony  presented  is  contradictory.  Ex- 
clusive of  the  defect  in  the  bill  of  exceptions,  we 
should  be  unwilling  to  interfere  with  this  verdict.  The 
verdict  of  a  jury  is  entitled  to  great  respect.  It  is  their 
province,  in  such  a  case  as  this,  to  weigh  the  testimony. 
It  is  with  reluctance  that  a  Court  would  interfere. .  If 
there  be  ground  for  an  honest  difference  of  opinion,  the 
verdict  should  not  be  set  aside. 

Per  Curiam. — The  judgment  is  affirmed  with  5  per  cent, 
damages  and  costs. 

Baitcll  and  Hall,  for  the  plaintiff. 

Judah,  for  the  defendant. 

(a)  8  Ind.  24 ;  4  Id.  266.     {b)  37  Ind.  361. 

(548) 


NOVEMBER  TERM,  1881.  465-466 


Picquet  i'.  M'Kay. 


PicQUET  i-.  M'Kay. 

Trover — Plaintiff's  Title. — To  support  the  action  of  trover,  the  plain- 
tiff must  prove  property,  and  the  right  of  possession  in  himself,  and  a 
conversion  by  the  defendant. 

Same — Lien  of  Defendant. — If  the  defendant  has  a  lien  on  the  goods  for 
which  trover  is  brought  against  him,  the  action  cannot  be  sustained,  unless 
a  tender  have  been  made  to  the  defendant  of  the  amount  of  the  claim. 

Same — Waiver  of  Lien. — If  a  person  have  a  lien  on  goods  for  the  price 
of  hauling  them  to  a  place  of  deposit,  his  subsequently  claiming  them  as 
his  own,  and  refusing,  on  that  ground,  to  deliver  them  to  the  owner,  is  a 
waiver  of  the  lien. 

Lien — Bailee — Character  of. — If  A.  deposit  with  B.  a  quantity  of  grain 
for  safe-keeping,  and,  at  the  time  of  making  the  deposit  borrow  money 
and  buy  goods  on  credit  of  B. — the  law  creates  no  lien  for  the  debt  on 
the  grain,  in  the  absence  of  any  agreement  to  that  effect. 

New  Trial — Excessive  Damages. — A  new  trial  should  not  be  granted  in 
an  action  on  tort,  on  the  ground  that  the  damages  are  excessive,  unless 
they  appear  at  first  blush  to  be  outrageous  and  excessive  (a). 

Former  Recovery — Pleading. — To  render  a  former  recovery  an  estoppel 
to  a  subsequent  suit,  embracing  the  same  matter  in  controversy  with  the 
first,  the  judgment  must  be  specially  pleaded  as  an  estoppel.  If  it  be  not 
so  pleaded,  and  the  defendant  rely  on  the  general  issue,  the  former  judg- 
ment is  admissible  in  evidence,  but  it  is  not  a  conclusive  bar  to  the  action  : 
the  jury  may  still  find  for  the  plaintiff,  if  they  think  him  entitled  to 
recover, 

ERROR  to  the  Jefferson  Circuit  Court. — M'Kay  was 
the  plaintiff  below,  and  Picquet  the  defendant. 

M'KiNNEY,  J. — This  was  an  action  of  trover  brought  to 
recover  the  value  of  248|  barrels  of  corn.  Plea,  not 
guilty.  Verdict  for  the  plaintiff  below  for  220  dollars, 
and  judgment,  A  motion  for  a  new  trial  founded  upon  the 
following  reasons:  1st.  The  verdict  is  contrary  to  law  and 
evidence:  2d,  The  damages  are  excessive;  3d,  The  record 
offered  in  evidence  by  defendant  was  conclusive 
[*466]  between  the  parties,  and  the  verdict  *onght  to 
have  been  for  the  defendant, — was  overruled,  and 
a  bill  of  exceptions  taken  to  the  opinion  of  the  Court. 
Two  errors   are   assigned :    the   refusal   of  the   Court   to 

(a)  23  Ind.  562. 

.      (54c»^ 


466  SUPREME  COURT  OF  INDIANA. 

Picquet  r.  M'Kay. 

grant  a  new  trial,  and  the  rendition  of  judgment  upon 
the  verdict. 

The  testimony  shows  that,  about  the  last  of  December, 
1828,  M'Kay  had,  at  a  landing  on  the  Ohio  river,  248| 
barrels  of  corn  ;  that  it  was  hauled  by  Picquet's  teams  to 
his  cribs,  and  the  parties  agreed  that  if  it  did  not  spoil, 
having  been  under  water  five  or  six  hours,  Picquet  was 
to  keep  it  at  one  dollar  per  barrel,  and  if  it  did  spoil, 
M'Kay  was  to  take  it  away,  paying  Picquet  the  expense 
of  hauling  it  from  the  landing  to  the  cribs,  amounting  to 
17  dollars.  After  the  deposit  of  the  corn,  M'Kay  re- 
ceived from  Picquet  60  dollars  in  cash  and  15  dollars  in 
goods.  The  terms  upon  which  the  money  was  paid  did 
not  appear.  On  the  20th  of  February  following,  M'Kay 
demanded  the  corn.  Picquet  refused  to  deliver  it,  saying 
it  was  his,  and  on  being  asked  for  the  price  of  it,  re- 
marked that  he  would  pay  for  it  when  he  pleased.  It 
appears  that  Picquet  stated  that  he  did  not  advance  the 
money  on  account  of  the  corn,  but  that  a  note  was  taken 
payable  to  C.  M.  Martin  &  Co.,  merchants  of  Madison, 
for  the  money,  and  by  them  endorsed  to  him;  that  good 
corn  was  worth  at  the  time  of  the  demand  one  dollar  and 
25  cents  per  barrel ;  that  after  the  demand  was  made, 
Picquet  offered  to  let  M'Kay  have  the  corn,  on  his  paying 
the  amount  of  money  and  goods  advanced  and  the  ex- 
pense of  hauling,  or  to  give  him  62|  cents  per  barrel  for 
it;  that  the  corn  was  noticed  on  the  day  of  the  demand — 
a  part  was  frozen  and  the  balance  wet  and  damaged  and 
""  daily  becoming  worse;  that  neither  the  money  advanced 
'  nor  the  expense  of  hauling,  had  been  tendered;  that  an 
authenticated  copy  of  a  record  of  a  chancery  cause, 
brought  by  Picquet  against  M'Kay  in  the  Gallatin  Cir- 
cuit Court,  Kentucky,  was  admitted  in  evidence  by  the 
Court,  and  read  to  the  jury;  that  the  corn,  the  subject  of 
the  suit  in  Kentucky,  was  the  same  for  which  this  action 
was  brought;  that  the  chancery  suit  in  Kentucky  was 
brought  after  the  institution  of  this  action ;  and  that  a 

(550) 


NOVEMBER  TERM,  1831.  466-467 

Picquet  i.  M'Kbj. 

part  of  the  corn  was  sold  in  May,  1829,  at  75  cents  per 
barrel,  and  that  one  other  crib  was  as  good  as  that  which 
was  thus  sold. 

To  sustain  this  action  it  is  essential  that  the  plaintiff 

prove  property  and  the  right  of  possession  in  him- 
[*467]    self,  and  a  '-^conversion  by  the   defendant.     The 

property  in  the  corn  does  not  appear  to  be  con- 
troverted. It  is  in  MKay.  Picquet  treated  it  as  such, 
by  the  proceeding  he  instituted  in  Kentucky.  But  it  is 
said  that  Picquet  had  a  lien  which  well  justified  the  re- 
fusal to  deliver,  until  the  lien  was  tendered  or  discharged. 
If  this  be  correct,  Picquet  was  not  guilt}-  of  the  conver- 
sion. We  will  examine  this  position.  Liens  are  of  three 
kinds:  by  common  law,  by  express  agreement,  or  by 
usage.  Picquet  was  not  a  common  carrier,  he  therefore 
has  no  lien  at  common  law.  His  lien  to  the  amount  of 
hauling  the  corn  to  the  cribs,  could  only  attach  by  express 
agreement;  no  usage  being  alleged,  and  none  existing. 
Assuming  that  the  agreement  that  Picquet  should  have 
the  corn  at  one  dollar  per  barrel  if  it  did  not  spoil,  and  if 
it  did  that  M'Kay  was  to  take  it  away  on  paying  the  ex- 
pense of  hauling,  created  a  lien  to  that  extent;  yet,  it  is 
conceived  that  on  the  demand  being  made,  the  lien  was 
waived  by  Picquet's  claiming  the  corn  as  his  own.  The  re- 
lation in  which  they  stood  by  the  agreement  was  changed 
by  this  claim.  It  was  not  the  assertion  of  a  right  to  the 
amount  of  an  existing  lien,  but  to  the  property  itself.  A 
lien  can  not  be  waived  and  resumed  at  pleasure.  If  a 
different  ground  of  retention  than  of  the  lien  be  assumed, 
the  lien  ceases  to  exist.  Boardman  v.  Sill,  1  Campb.  X. 
P.  Cas.  410.  If  the  lien  does  not  exist  by  virtue  of  the 
hauling,  is  it  created  by  the  advance  of  money  and  goods? 
This  idea  is  repelled  by  the  express  declaration  of  Pic- 
quet, that  he  did  not  make  the  advance  of  money  and 
goods  on  account  of  the  corn,  but  that  for  the  money  he 
had  taken  M'Kay's  note  to  C.  M.  Martin  &  Co..  and  that 
it  was  endorsed  to  him  by  them.     This  note  was  payable 

(551) 


467-468   SUPREME  COURT  OF  INDIANA. 

Picquet  v.  M'Kay. 

one  day  after  date,  and  assuredly  establishes  a  preference 
to  personal  liability,  rather  than  to  the  corn.  Had  no 
such  declaration,  however,  been  made,  and  the  fact  of 
the  money  and  goods  advanced  been  admitted,  yet,  in. 
the  absence  of  an  agreement  that  a  lien  should  exist,  the 
law  would  not  have  created  it.  This  conclusion,  exclu- 
sive of  the  declaration  of  Picquet,  is  fully  sustained  by 
the  case  of  Levering  v.  Bond's  Adm'r,  2  Harr.  &  J.  R.  300. 
It  is  also  alleged  that  the  damages  are  excessive.  New 
trials  should  be  granted,  when  the  finding  of  a  jury  has 
stamped  upon  it  a  palpable  disregard  of  the  rights  of  a 
party,  and  the  indulgence  of  a  prejudiced  rather 
[*468]  than  a  just  view  of  the  case.  *A  verdict,  how- 
ever, to  justify  the  intervention  of  a  Court,  should, 
in  the  language  of  many  decisions,  on  the  first  blush,  ap- 
pear to  be  outrageous  and  excessive.  Upon  a  careful  ex- 
amination of  the  testimony  in  this  case,  we  are  not  struck 
with  such  a  disproportion  between  the  verdict  and  the 
value  of  the  corn,  as  would  warrant  us  to  say  that  this 
verdict  is  excessive.  The  evidence  on  this  point  is  some- 
what contradictory.  The  plaintifi:'  in  error  oftered,  in 
February,  to  give  62|  cents  per  barrel  for  the  corn.  At 
that  time  good  corn  was  worth  one  dollar  and  25  cents 
per  barrel.  In  May,  one  crib  of  the  corn  was  sold  at  75 
cents  per  barrel,  and  one  other  crib  was  as  good  as  that 
which  was  thus  sold.  The  jury  may  have  correctly  pre- 
sumed that  the  preservative  care  of  the  owner  applied  to 
the  corn  in  February  would  have  secured  an  average 
price  equalling  that  which  it  gave. 

It  is  also  contended  that  the  decree  rendered  in  the 
chancery  cause  in  Kentucky,  is  conclusive  in  this  suit,  as 
the  subject-matter  of  each  is  the  same.  The  position  is 
unquestionably  correct,  that  the  judgment  of  a  Court  of 
competent  jurisdiction  is  conclusive  between  the  parties,, 
the  same  matter  being  in  controversy.  To  give  it,  hov,-- 
ever,  this  conclusive  eft'ect,  it  should  be  pleaded  as  an 
estoppel.     Outram  v.  Morewood^  3  East,  346.     In  the  case^ 

(552) 


NOVEMBER  TERM,  1831.  468-469 


Longworth  v.  Conwell. 


of  Vooght  V.  Winch,  2  Barnew.  &  Aid.  662,  the  Court  of 
King's  Bench,  upon  a  review  of  the  cases  upon  the  sub- 
jec-rof  estoppels,  decided  that  if  the  estoppel  is  not  relied 
upon,  but  issue  is  taken  on  the  fact,  the  jury  will  not  be 
bound  by  the  estoppel.  The  same  doctrine  is  found  in  1 
Stark,  on  Ev.  205.  The  defendant  has  rehed  upon  the 
general  issue.  The  record  with  other  testimony  is  given 
to  the  jury;  they  weigh  it,  and  if  they  think,  notwith- 
standing the  decree,  that  the  case  is  with  the  plaintiff, 
they  can  find  accordingly.  Church  v.  Leavenworth,  4  Day, 
274;  Canaan  v.  G.W.  Turnpike,  1  Conn.  1. 

We  are  therefore  of  opinion,  that  the  Circuit  Court 
acted  correctly  in  refusing  a  new  trial. 

Stevens,  J.,  having  been  of  counsel  in  the  cause,  was 

absent. 

Per  Curiain.— The  judgment  is  affirmed,  with  3  per  cent. 

damages  and  costs. 

Hoiok  and  Sjnith,  for  plaintiff. 
Sullivan,  for  the  defendant. 


r*469]  *LoNGWORTH  V.  Conwell. 

Specific  Performance— Power  of  Agent— Performance  of  Condition. 
—  A.  agreed  in  writing  to  sell  to  B.  a  tract  of  land  for  a  certain  sum. 
Payment  to  be  made  by  B.'s  delivering  to  A.,  or  to  his  agent  C,  a  boat 
and  cargo  of  produce  by  the  first  rise  of  the  Ohio  river  sufficient  to 
10  lake  boats  over  certain  rapids  in  the  river.  If  the  boat,  &c.  could  not 
be  prepared  by  the  time  specified,  the  payment  was  to  be  subsequently 
made  in  a  different  manner.  The  conveyance  to  be  made  when  tlie  land 
should  be  paid  for.  B.  took  possession  of  the  land  ;  and  delivered  the 
boat  and  cargo  to  C,  as  A.'s  agent,  but  not  till  several  weeks  after  the 
first  rise  of  the  river  sufficient  for  the  purpose  above  mentioned.  C.  took 
the  property  to  N.  Orleans;  but  what  became  of  the  proceeds  did  not  ap- 
pear. 
Held,  that  C,  as  the  special  agent  of  A.  to  receive  the  property,  had  no  au- 
thority to  receive  it  after  the  first  rise  of  the  river,  &c. ;  and  that  the  sub- 
sequent delivery  of  the  same  to  him,  did  not  entitle  B.  to  a  conveyance 
of  the  land  from  A. 

(553) 


4G9-470   SUPREME  COURT  OF  IIn^JDIANA. 

Longworth  v.  Conwell. 

Held,  also,  that  supposing  C.  to  have  been  the  general  agent  of  A.,  still  the 
delivery,  under  the  circumstances  of  the  case,  of  the  boat  and  cargo  to  C, 
after  the  time  specified  in  the  contract,  was  not  binding  on  A. 

Principal  and  Agent — Power  of  General  Agent. — It  is  a  general  rule, 
that  the  principal  is  bound  by  the  acts  of  his  general  agent,  though  the 
agent  exceed  his  private  instructions.  But  the  rule  does  not  apply  to 
cases  where  the  person  dealing  with  the  agent  is  apprised  of  the  existence 
of  the  private  instructions. 

ERROR  to  the  Dearborn  Circuit  Court. 

Blackford,  J. — This  is  a  bill  in  chancery  by  Conwell 
against  Longworth.  The  object  of  the  bill  is  to  obtain  a 
specific  performance  of  a  written  contract,  signed  by 
Longworth,  for  the  conveyance  of  land.  The  following 
is  the  agreement : 

"Memorandum  of  an  agreement  between  Nicholas 
Longworth  and  Elias  Conwell :  said  Longworth  sells  him 
his  farm  on  Hogan  creek,  bought  of  Wright,  containing 
71  acres,  at  6  dollars  per  acre,  payable  in  a  boat  fit  to  go 
to  Orleans,  at  50  dollars.  He  is  to  cork,  cover  and  fix  the 
boat,  and  said  Longworth  is  to  allow  him  the  cost.  The 
balance  to  be  paid,  one-third  in  good  white  kiln-dried 
corn  meal  at  one  dollar  and  a  half  per  barrel ;  one-third 
in  good  stable  fed  beef  cattle  at  the  market  price;  and 
one-third  in  good  corn  fed  hogs  at  the  market  price.  If 
the  parties  can  not  agree  on  the  price  and  weight,  the 
same  to  be  fixed  by  two  persons  mutually  chosen,  and 
they  to  have  liberty,  if  necessary,  to  choose  an  umpire. 
The  boat  and  articles  on  board  to  be  by  said  Elias  Con- 
well delivered  to  said  Longworth,  or  his  agent,  0.  Walker, 
by  the  first  rise  of  the  river  sufficient  to  get  over 
[*470]  the  falls;  or  should  said  Elias  Conwell  not  be  *able 
to  prepare  the  boat  and  loading  by  that  time,  the 
land  to  be  paid  for  in  good  stall  fed  beef  cattle,  to  be  de- 
livered in  parcels  or  together  at  any  time  within  one  year, 
at  Aurora  or  in  Cincinnati,  at  the  market  price  to  be  fixed 
by  men  as  aforesaid.  And  said  Longworth  to  be  notified 
when  any  are  ready  for  delivery;  and  us  much  as  80  dol- 
lars' worth  must  be  delivered  at  a  time,  if  delivered   at 

(554) 


KOVEMBER  TERM,  1831.  470 

Longwortli  v.  Conwell. 

Aurora.  Interest  from  this  date  till  paid.  A  clear  deed 
to  be  made  as  soon  as  the  land  is  paid  for.  Witness  our 
hands  this  16th  Sept.,  1822. — N.  Longworth.  I  would 
prefer  Walker  should  change  the  contract  so  as  to  have 
the  meal  delivered  in  good,  tight,  merchantable  hogs- 
heads.—N.  L." 

The  bill  avers  that,  by  virtue  of  the  agreement,  the 
complainant  entered  into  possession  of  the  land,  and  that 
he  had  paid  the  consideration,  by  a  delivery  of  the  pro- 
duce to  Walker,  the  agent  of  the  defendant,  according  to 
the  contract.  The  prayer  of  the  bill  is,  that  the  defend- 
ant be  decreed  to  execute  a  good  deed  to  the  complainant 
for  the  land,  &c. 

The  defendant  admits,  in  his  answer,  the  execution  of 
the  agreement.  He  says,  however,  that  the  produce  was 
not  delivered  by  Conwell  on  the  first  sufficient  rise  of  the 
Ohio  river,  as  the  contract  required;  and  that  he  is  not 
bound  by  the  subsequent  receipt  of  it  by  Walker  as  charged 
in  the  bill.  He  says,  also,  that  as  the  payment  for  the 
land  had  not  been  made  to  the  defendant,  nor  to  any  per- 
son authorized  by  him  to  receive  it,  he  was  under  no  ob- 
ligation to  execute  the  deed  to  the  complainant;  and  that 
he  had  accordingly  refused  to  do  so,  except  upon  a  cer- 
tain condition  (stated  in  the  answer  and  which  will  be 
hereafter  noticed);  with  which  the  complainant  refused 
to  comply.  The  defendant  further  states,  that  the  com- 
plainant afterwards  filed  his  claim  for  the  price  of  the 
boat  and  cargo  against  the  estate  of  Walker,  who  had  died 
in  j^ew  Orleans;  and  that  it  was  not  until  that  estate  was 
ascertained  to  be  insolvent  that  he  filed  the  present  bill 
against  the  defendant. 

The  decree  of  the  Circuit  Court  is  in  favor  of  the  com- 
plainant. 

The  following  is  the  material  part  of  the  testimony : 

It  is  proved  that  Conwell,  on  the  4th  of  i^ovember, 
1822,  delivered  to  Walker,  as  the  agent  of  Longworth, 
a    boat   with    a   cargo    of  produce,   valued  by   the   two 

(555) 


471  SUPREME  COURT  OF  INDIANA. 

Longworth  v.  Conwell. 

[*471]  former  at  426  dollars,  which  *\vas  the  sum  that  had 
been  agreed  on  for  the  land.  It  is  also  proved, 
that  subsequently  to  the  date  of  the  contract,  and  three  or 
four  weeks  before  the  delivery  of  the  property,  there  was 
a  rise  in  the  Ohio  river  high  enough  to  take  boats  over 
the  falls,  and  higher  than  the  one  was  when  the  property 
was  delivered.  It  is  also  proved,  tJiat  Conwell  had  sold 
to  Walker  a  considerable  quantity  of  tobacco,  which  the 
latter  took  with  liim  to  New  Orleans,  when  he  went  Avith 
the  other  produce  he  had  received  from  the  former;  and 
that  this  tobacco  was  not  of  the  quality  represented  •  by 
Conwell,  and  brought  at  New  Orleans  but  little  more  than 
one-half  the  price  that  he  had  charged  Walker  for  it. 

It  is  proved  also,  that,  after  the  delivery  of  the  property 
at  Aurora  to  Walker,  Conwell  went  to  Cincinnati,  where 
Longworth  resided,  showed  him  Walker's  receipt  for  the 
property,  and  demanded  a  deed.  Longworth  refused  to 
execute  the  deed,  on  the  ground  that  the  property  had 
not  been  delivered  on  the  first  sufficient  rise  of  the  river, 
and  that  Walker  had  no  authority  to  receive  it  afterwards. 
But,  after  some  conversation,  Longworth  expressed  his 
willingness  to  sanction  the  reception  of  the  property  by 
Walker,  provided  Conwell  would  agree  that,  in  case 
Walker  should  sustain  a  loss  on  the  tobacco,  no  part  of 
the  property  received  for  Longworth  should  go  to  pay 
Conwell  for  that  loss.  This  proposition  of  Loiigwrrth, 
Conwell  refused  to  accept,  and  the  deed  for  the  land  was 
consequently  not  executed  by  Longworth.  It  is  proved 
that  Walker  died  on  the  Mississippi  in  the  summer  of 
1823,  and  that  afterwards,  and  after  Longworth's  refusal 
to  execute  the  deed,  Conwell  filed  the  following  chiini  in 
Court,  against  the  estate  of  Walker,  for  the  price  of  the 
l)()ut  and  cargo  in  question:  "  Tlie  estate  of  Olnidiah 
Walker,  dec'd,  to  Elius  Conwell,  Dr.  To  one  flat  boat 
and  loading,  provided  I  fail  to  get  the  land  from  N.  Long- 
worth,  which  I  bought  of  him— $426.00— Ellas  Conwell." 
After  this,  Conwell  informed  one  of  the  witnesses,  that  ho 

(556) 


NOVEMBER  TERM,  1831.  471-472 

Longworth  v.  Conwell. 

did  not  intend  to  give  up  his  claim  to  the  land  he  had 
bought  of  Longworth  ;  but  that  he  would  get  what  he 
could  from  the  estate,  and  as  he  did  not  expect  the  estate 
would  pay  him  the  whole,  he  would  look  to  the  land  for 
the  balance. 

This  is  believed  to  be  the  material  evidence  given  in  the 

cause. 
[*472]        ^According  to  the  terms  of  the  contract  upon 

which  the  present  bill  is  founded,  the  complainant, 
Conwell,  could  have  no  right  to  demand  from  the  defend- 
ant, Longworth,  a  deedfor  the  land  in  controversy,  unless 
he  had  previousl}^  made  full  payment  for  the  same,  or 
done  that  which  was  equivalent.  The  consideration-money 
was  426  dollars ;  and  the  complainant  had  his  choice  of 
two  modes  of  payment.  First,  he  might  deliver  at  the 
first  sufficient  rise  of  the  Ohio  river  after  the  date  of  the 
contract,  to  the  defendant  or  his  agent  Walker,  a  boat 
and  cargo  of  produce  for  the  New  Orleans  market  worth 
426  dollars;  or,  secondly,  he  might  pay  the  amount  in 
beef  cattle,  to  be  delivered  at  Aurora  or  Cincinnati,  within 
one  year  after  the  contract.  The  complainant  relies  alone 
upon  his  having  paid  the  consideration,  according  to  the 
mode  of  payment  first  above-mentioned.  The  delivery  of 
the  property  was  not  made  to  the  defendant  in  person, 
but  to  Walker  as  his  agent ;  nor  was  it  made  at  the  first 
rise  of  the  river  as  had  been  agreed  on,  but  several  weeks 
afterwards.  And  the  great  question  upon  which  this  case 
must  be  decided  is.  Was  that  delivery,  so  made  to  Wal- 
ker, a  performance  of  Conwell's  part  of  the  contract? 

The  time  fixed  by  the  agreement  for  the  delivery  of  the 
p>roperty  was  very  material.  It  was  the  defendant's  in- 
terest to  have  the  produce  in  market  as  early  as  possible, 
and  he  could  not  be  obliged  to  receive  it  after  the  time 
stipulated  for  its  delivery.  Walker,  however,  as  the 
agent  of  the  defendant,  did  receive  it  afterwards,  and  took 
it  to  New  Orleans.  It  is  material,  therefore,  to  examine 
whether  Walker's  authority  to  receive  the  property  ex- 

(.557) 


472-473   SUPREME  COURT  OF  INDIAl^A. 

Longworth  v.  Conwell. 

tended  beyond  the  time  limited  by  the  contract  for  its 
delivery. 

The  complainant  contends,  in  the  first  place,  that  Wal- 
ker's authority  to  receive  the  property  when  he  did,  is 
contained  in  the  agreement  itself.  It  is  said  in  the  con- 
tract, "  The  boat  and  articles  on  board  to  be  by  said,  Elias 
Conwell,  delivered  to  said  Longworth,  or  his  agent,  0. 
Walker,  by  the  first  rise  of  the  river,''  &c.  There  is  noth- 
ing in  these  words  giving  any  authority  to  receive  the 
property  after  the  first  rise  of  the  river.  Had  a  distinct 
power  of  attorney  been  executed,  authorizing  Walker  to 
receive  the  boat  and  cargo  for  the  defendant,  at  a  particu- 
lar time,  it  is  clear  that  the  power  would  have  expired 
with  the  appointed  day.     The  law  must  be  the  same  in 

this  case. 
[*473]        *Here  the  agency  created  by  the  terms  of  the 
contract  was  a  special  one ;  it  was  merely  for  the 
receipt  of  certain  specified  property  at  a  fixed  period  ;  and 
the  power  expired  when  that  period  was  past. 

The  complainant  contends,  in  the  second  place,  that  a 
general  agency  is  proved,  independently  of  anything  con- 
tained in  the  contract.  In  this  he  is  mistaken.  The  de- 
fendant answers  the  bill,  on  this  point,  as  follows:  "That 
Obadiah  Walker,  in  his  life-time,  and  Edward  Walker, 
since  his  death,  and  perhaps  before,  were  to  a  certain  ex- 
tent attending  to  his  business.  Said  Obadiah  Walker  had 
no  written  authority  or  verbal  one  further  than  this:  he 
received  money  from  respondent  and  paid  taxes  for  him  ; 
if  persons  wished  to  buy  land,  he  showed  the  land  and 
proposed  terms;  but  he  had  no  authority  even  verbal  to 
make  contracts.  But  if  he  made  terms  that  met  respond- 
ent's views,  he  made  written  contracts  with  the  parties; 
if  not,  said  Walker  had  no  power  to  make  contracts  for 
him  or  bind  him  ;  nor  does  respondent  recollect  that  he 
ever  attempted  it,  except  in  the  reception  of  the  boat  and 
cargo  aforesaid,"  The  witnesses  prove  nothing  more  than 
this  statement  of  the  defendant.     There  is  surely  nothing 

(558) 


NOVEMBER  TERM,  1831.  473-474 

Longworth  v.  Con  well. 

in  this  like  a  general  agency  for  the  transaction  of  all 
kinds  of  business,  or  of  the  one  kind  relating  to  the  pur- 
chase and  exportation  of  produce.  Walker  seems,  from 
the  answer  and  the  depositions,  to  have  been  employed 
merely  to  pay  taxes,  and  make  and  receive  propositions 
respecting  the  purchase  of  lands  which  the  defendant  had 
for  sale,  subject  entirely  to  the  subsequent  agreement  or 
disagreement  of  his  employer.  lie  could  make  no  con- 
tract of  any  kind  which  would  bind  the  defendant.  It  is 
idle,  then,  to  say  anything  about  a  general  agency,  appear- 
ing from  the  testimony,  dehors  the  contract  on  which  the 
bill  is  founded. 

But  even  if  a  general  agency  had  been  proved  by  the 
witnesses,  as  to  all  kinds  or  any  one  kind  of  business,  it 
would  not  change  the  merits  of  the  present  case.  It  is  a 
general  rule,  to  be  sure,  that  the  principal  is  bound  by 
the  act  of  his  general  agent,  although  such  act  may  ex- 
ceed the  agent's  private  instructions.  The  reason  of  this 
rule  is,  that  the  persons  dealing  with  the  agent  can  be 
presumed  to  be  acquainted  only  with  the  general  author- 
ity. Femi  V.  Harrison,  3  T.  R.  757.  In  the  case  before 
us,  however,  there  were  no  private  instructions ; 
[*474]  *and  it  can  not,  therefore,  be  brought  within  the 
general  rule  which  we  have  just  mentioned,  and 
which  was  so  much  relied  on  for  the  complainant  in  the 
argument  of  the  cause.  Here,  the  complainant  did  know 
that  Walker's  powers,  let  them  as  to  all  other  matters  be 
what  they  might,  were  limited  as  to  the  receipt  of  this 
property  for  the  defendant,  to  the  first  sufficient  rise  of 
the  river  after  the  date  of  the  contract.  This  limitation 
of  the  agent's  authority  was  expressly  told  to  the  com- 
plainant by  the  terms  of  the  contract  itself  upon  which 
he  has  founded  his  bill.  The  law,  therefore,  can  not  pre- 
sume Conwell's  ignorance  of  Walker's  want  of  authority 
to  receive  the  property  at  the  time  he  did  receive  it;  iind 
had  Walker  even  been  the  general  agent  of  Longworth, 

(559) 


474-475    SUPREME  COURT  OF  INDIANA. 

Long  worth  d.  Con  well. 

the  latter  would  not  have  been  bound  by  this  unauthor- 
ized act.     Cessante  ratione^  legis  cessat  ipsa  lex. 

The  opinion  to  which  we  have  arrived  is — that  whether 
"Walker  be  considered  a  special  or  a  general  agent,  the 
complainant's  delivery  of  the  boat  and  cargo  to  hira  at 
the  time  he  did  deliver  it,  was  not  such  a  performance  of 
his  part  of  the  contract  with  the  defendant  as  could  en- 
title him  to  a  deed  for  the  land  in  question. 

There  is  nothing  in  any  other  part  of  the  evidence,  not 
yet  commented  on,  which  can  afiect  this  conclusion  against 
the  complainant. 

The  defendant  refused  to  execute  the  deed,  when 
called  on  by  the  complainant,  soon  after  Walker's  de- 
parture with  the  produce.  The  same  reason  was  then 
given  for  the  refusal  that  is  insisted  upon  now.  The  terms 
upon  which,  at  that  time,  the  defendant  proposed  to  exe- 
cute the  deed,  notwithstanding  his  legal  right  to  refuse, 
were  of  the  most  reasonable  kind;  and  the  complainant  in 
refusing  to  comply  with  them,  plainly  showed  that  he  had 
no  claim  to  any  favors  from  the  defendant.  The  latter, 
accordingly,  very  properly  told  the  former,  that  he  must 
look  to  Walker  for  the  property,  with  which  he  had 
chosen  to  entrust  him.  It  appears  that,  after  this,  the 
complainant  himself  thought  it  advisable  not  to  lose  sight 
of  the  estate  of  Walker.  The  filing  of  his  account  against 
Walker's  estate  for  the  produce,  though  with  the  proviso 
attached  to  it — and  his  statement  to  one  of  the  witnesses, 
that  he  intended  to  get  what  he  could  from  the 
[*475]  estate,  and  look  to  the  land  for  the  balance — *show 
that  the  complainant's  confidence  in  his  claim  to 
the  land  in  question  was  far  from  being  perfect. 

The  last  ground  taken  by  the  complainant  is  that  as 
the  defendant  has  not  denied  his  receiving  the  proceeds 
of  the  boat  and  cargo,  and  has  proved  that  he  did  not 
receive  them,  the  Court  must  presume  these  proceeds  to 
liiive  come  into  his  hands.  In  answer  to  this  it  is  quite 
suthoiciit  to  observe,  that  the  defendant  is  not  charged  in 

(560) 


NOVEMBER  TERM,  1831.  475-476 

Jones  i.  The  State. 

the  bill  Avith  the  receipt  of  these  proceeds,  nor  is  there 
any  evidence  in  the  record  as  to  what  became  of  them. 
If  the  complainant  wished  to  show  that  the  defendant, 
by  receiving  the  money  arising  from  the  sales  of  the  pro- 
duce, had  recognized  Walker's  unauthorized  receipt  of 
that  produce,  it  was  surely  for  the  complainant  to  prove 
the  defendant's  receipt  of  the  money.  He  has  offered, 
however,  no  evidence  of  this  fact;  and  has  no  foundation, 
of  course,  for  this  last  point  relied  on  to  sustain  the  cause. 

It  is  the  opinion  of  the  Court,  for  the  reasons  which 
have  been  given,  that  the  complainant  in  this  case  has 
not  shown  himself  entitled  to  the  land  claimed  in  his 
bill;  and  that  the  decree  of  the  Circuit  Court,  in  his 
favor,  should  be  reversed. 

Stevens,  J.,  having  been  of  counsel  in  the  cause,  was 
absent. 

Per  Curiam. — The  decree  is  reversed  with  costs.  Cause 
remanded  to  the  Circuit  Court,  with  directions  to  dismiss 
the  bill,  &c. 

Caswell,  for  the  plaintiff. 

Lane  and  Hohnan,  for  the  defendant. 


Jones  r.  The  Stat 


Grand  Jury — Challenge  of — Practice. — A  per.sou  under  a  prosecution 
for  a  capital  oSence  about  to  be  submitted  to  a  grand  jury,  may  challenge 
any  of  the  grand  jurors  for  cause,  but  not  peremptorily  (a.) 

Same — Belief  in  Death  Penalty — One  of  the  grand  jurors  in  such  a  case 
in  answer  to  a  question  put  to  him  by  the  prosecuting  attorney,  said, 
"  that  he  thought  he  could  not  in  his  conscience  find  any  man  guilty  of 
an  offence  that  would  subject  him  to  death."  Held,  that  the  juror  was  dis- 
qualified. 

Jury — Challenge  of — Practice. — Challenges  to  petit  jurors  are  first  made 
by  the  prisoner,  and  afterwards  by  the  prosecuting  attorney. 

Same — Disposal  during  Continuance. — The  record  in  a  capital 

[*476]    case  showed,  that,  after  the  petit  jury  were  sworn,  the  Court  '••■ad- 
journed from  one  day  to  the  next,  but  it  did  not  show  that  the  ]ury 

(a)  51  Ind.  14  ;  22  Id.  347. 

Vol.  II.— 36  (561) 


476  SUPREME  COURT  OF  INDIANA. 

Jones  I'.  The  State. 

were  legally  disposed  of  during  the  adjournment.  Held,  that  a  verdict 
and  judgment  against  the  defendant  must,  under  those  circumstances,  be 
considered  erroneous  (6). 

ERROR  to  the  Bartholomew  Circuit  Court. 

Stevens,  J. — Jones,  the  plaintiff  in  error,  was  indicted 
for  the  murder  of  John  Ray,  tried  by  a  jury,  found  guilty, 
and  a  judgment  of  death  rendered  by  the  Court  against 
him  on  the  verdict  of  the  jury.  To  reverse  which  judg- 
ment this  writ  of  error  is  prosecuted. 

It  appears  of  record  b}^  a  bill  of  exceptions  that,  at  the 
time  of  impaneling  the  grand  jury  that  found  the  bill 
'of  indictment,  Jones  was  in  prison  in  the  custody  of  the 
sheriff  on  the  charge  for  which  he  was  indicted  and  con- 
victed; and  by  order  of  the  Court  was  in  Court  at  the 
time  the  grand  jury  was  being  sworn;  and  that  he 
claimed  the  right  of  peremptorily  challenging  the  jurors 
without  showing  any  cause,  which  the  Court  overruled, 
but  permitted  him  to  challenge  for  cause;  that  he  chal- 
lenged one  Isaac  Parker  for  cause,  and  Parker  was  sworn 
to  answer  questions  touching  his  qualifications,  and  after 
being  examined  by  Jones,  was  by  him  accepted;  upon 
which,  the  attorney  prosecuting  the  pleas  of  the  state 
asked  the  juror,  "  if  he  could  in  his  conscience  Jind  any  man 
guilty  of  an  offence  which  would  subject  him  to  the  'punishment 
of  death  f  To  the  asking  of  which  question  Jones  ob- 
jected, but  the  Court  overruled  the  objection  and  required 
the  juror  to  answer;  and  the  juror  answering  that,  "  Ae 
thought  he  could  not  in  his  conscience  find  any  man  guilty  of 
an  offence  that  would  subject  him  to  death"  he  was  by  _the 
Court  for  that  cause  set  aside. 

It  also  appears  of  record  by  the  bill  of  exceptions  that 
after  the  bill  of  indictment  was  found,  and  the  defendant 
had  been  arraigned  and  pleaded  not  guilty, ^and  while  the 
petit  jury  was  being  impaneled  and  sworn,  the  defendant 
moved  the  Court  to  require  the  attorney  prosecuting  the 
pleas  of  the  state,  to  first  examine  the  jurors  and  accept 

(b)  28  Ind.22;  modified,  7  Id.  271. 

(562) 


ITOVEMBER  TERM,  1831.  476-477 

Jones  11.  The  State. 

or  reject  them,  before  the  defendant  should  be  called  on 
to  make  his  election;  which  motion  the  Court  overruled 
and  required  the  defendant  to  first  make  his  election,  and 
after  he  had  accepted,  the  attorney  prosecuting  the  pleas 
of  the  state  should  then  be  at  liberty  to  make  his  chal- 
lenges, if  any  he  had  to  make :  and  under  that  decision 
of  the  Court  James  Jones  and  other  jurors  were 
[*477]  set  *aside  by  the  attorney  prosecuting,  after  the 
defendant  had  chosen  them. 

It  further  appears  of  record,  that  the  petit  jury  was  im- 
paneled and  sworn  on  Wednesday,  and  that  before  any 
evidence  was  heard,  the  Court  remanded  the  defendant 
into  the  custody  of  the  sheriff,  and  adjourned  until  Thurs- 
day morning,  eight  o'clock;  but  the  record  is  entirely 
silent  as  to  what  was  done  with  the  jury. 

The  first  point  in  this  case  is.  Did  the  Circuit  Court 
err  in  not  permitting  the  defendant  to  challenge  grand 
jurors  peremptorily? 

There  is  no  statute  or  sanctioned  practice  in  this  state, 
authorizing  a  prisoner  to  peremptorily   challenge  grand 
jurors;  and  it  is  believed  that  no  such  practice  exists  in 
England.     The  common  law  requires  grand  jurors  to  be 
good  and  lawful  freeholders,  and  the  English  statutes  re- 
quire several  additional  qualifications  ;  and  Chitty  in  his 
treatise  on  criminal  law,  when  speaking  of  those  qualifi- 
cations of  grand  jurors,  says  that  a  prisoner,  who  is  at  the 
time  under  a  prosecution  for  an  ofience  about  to  be  sub- 
mitted to  the  consideration  of  agrand  jury,  may  challenge 
any  of  the  grand  jurors,  who  lacks  any  of  those  qualifica- 
tions required  by  the  common  and  statute  laws.     Chitty 
refers  to  Hawkins'  Pleas  of  the  Crown,  where  it  is  said 
that  a  challenge  to  grand  jurors  is  very  properly  limited 
to  persons  who  are,  at  the  time,  under  a  prosecution  for 
an  offence  about  to  be  submitted  to  a  grand  jury.  By  these 
authorities  it  is  clear,  that,  in  England,  these  challenges 
are  limited  to  one  certain  class  of  cases,  and  then  only  for 
cause.     We  are  therefore  of  opinion  that  the  Circuit  Court 
decided  correctly.  (563) 


477-478   SUPREME  COURT  OF  IXDIAXA. 

Jones  r.  The  State. 

The  next  point  is,  Did  the  Court  err  in  permitting  the 
attorney  prosecuting  to  ask  the  grand  juror,  ''  if  he  could 
in  his  conscience  find  any  man  guilty  of  an  offence  which 
would  subject  him  to  the  punishment  of  death,"  and  in 
setting  aside  the  juror  for  answering  that  he  "thought  he 
could  not?" 

The  plaintiff  contends  that  our  statute  does  not  authorize 
the  asking  of  such  a  question,  and  that  it  can  not  be 
asked  without  the  aid  of  a  statute.  It  is  correct  that, 
without  the  aid  of  a  statute,  no  question  can  be  asked  a 
juror  that  tends  either  to  his  disgrace  or  his   dishonor; 

but  the  authorities  all  show  what  is  to  be  under- 
[-^478]    stood  by  that.  Many  of  the  cases  under  that  *head 

are  summed  up  in  Bacon's  Abridgement,  tilK' 
Juries,  letter  E,  and  in  the  case  of  The  King  v.  Edmo)ul<, 
6  Sergeant  &  Lowber,  502,  503.  It  can  not  be  .asked  a  juror, 
if  he  has  been  either  charged  with,  imprisoned  for,  or  con- 
victed of  a  crime,  or  if  he  is  a  villein  or  an  outlaw,  because 
these  questions  tend  to  his  disgrace.  Nor  can  it  be  asked 
him,  whether  he  has  formed  or  expressed  an  opinion  of 
the  prisoner's  guilt  ;  because,  if  he  has  formed  or  expressed 
an  opinion  through  ill-will,  malice,  or  hatred  to  the 
prisoner,  it  is  dishonorable,  and  if  he  has  formed  or  ex- 
pressed his  opinion  honestly,  from  his  correct  knowledge 
of  all  the  facts  of  the  case,  it  is  no  cause  of  challenge  (1). 
The  question  asked  thejuror,  in  this  case,  has  nothing  to 
do  with  the  guilt  or  innocence  of  the  prisoner,  nor  is  it  re- 
specting any  improper  act  or  conduct  of  the  juror,  nor 
could  it  tend  to  either  his  disgrace  or  dishonor.  It  was  a 
general  question  upon  an  abstract  principle,  and  therefore, 
under  the  circumstances  of  the  case,  might  be  properly 
asked.  The  object,  in  these  cases,  is  not  to  ]»rocure  a  jury 
that  will  acquit  the  guilt}'  or  convict  the  innocent,  but  to 
select  such  men  as  will  impartiall}' hear  and  examine,  and 
acquit  the  innocent  and  convict  the  guilty.  A  grand  jury 
is  the  great  inquest  between  tlie  government  and  the  citi- 
zen; an  institution  that  should  be  j)reserved  in  its  purity; 

(504) 


NOVEMBER  TERM,  1831.  478-479 

Jones  r.  The  State. 

and  no  person  should  ever  be  permitted  to  take  a  seat  as 
a  member  thereof,  except  such  good  and  lawful  men  as 
will  impartially  and  faithfully  carry  the  true  objects  of 
the  institution  into  elFect.    We  think  the  Court  did  not  err. 

The  next  point  is,  Did  the  Court  err  in  permitting  the 
attorney  prosecuting  to  challenge  a  petit  juror  after  the 
prisoner  had  accepted  him  ? 

The  only  question  on  this  point  is,  who  shall  first  make 
his  challenge  ?  If  this  were  a  new  question  and  we  had 
it  to  settle,  we  should  say  that  the  state  ought  first  to 
make  her  challenges;  but  as  all  the  English  authorities 
establish  a  different  doctrine,  and  no  American  cases  have 
been  seen  by  us  to  authorize  a  dilFerent  practice,  we  are 
bound  for  the  present  to  sanction  what  the  Circuit  Court 
has  done. 

The  last  point  is.  Did  the  Circuit  Court  err  in  adjourn- 
ing, after  the  petit  jury  was  sworn,  from  Wednesday  even- 
ing until  Thursday  morning,  without  putting  the  jury 
under  the  care  and  charge  of  the  proper  and  sworn  ofiicers 

of  the  Court? 
[*479]  *If  it  is  a  fact,  that  the  Circuit  Court  did  so 
adjourn  without  disposing  of  the  jury,  by  putting 
them  under  the  charge  and  care  of  the  proper  sworn  of- 
ficers of  the  Court,  it  is  admitted  without  controversy  to 
be  error ;  but  it  is  insisted  that  we  are  bound  to  presume 
that  the  Court  acts  correctly  in  all  cases  of  discretion,  un- 
less the  contrary  appears  of  record  by  a  bill  of  exceptions. 
It  is,  as  a  general  principle,  correct  to  presume  that  a 
Court  acts  correctly  in  matters  of  discretion,  unless  the 
contrary  appears  of  record,  if  the  record  shows  that  the 
Court  did  act  upon  the  subject.  Our  statute  requires,  in 
cases  of  appeals  and  writs  of  error,  that  the  Circuit  Courts 
shall  cause  to  be  certified  to  us  a  full  and  complete  tran- 
script of  all  its  proceedings;  and  this  transcript  is  so  cer- 
tified; and  we  are  bound  to  believe  that  nothing  more 
was  done  than  what  is  certified  to  us  to  have  been  done. 
We  can  not,  by  intendment,  supply  any  material  proceed- 

(505) 


479-480    SUPREME  COURT  OF  INDIANA. 

Raburn  v.  Shortridge. 

ing  which  is  entirely  omitted.  There  are  no  words  in 
this  record  by  which  we  can  supply,  by  intendment,  that 
the  jury  was  legally  and  correctly  disposed  of  by  the 
Court  during  that  adjournment.  2  New  York  T.  R.  373; 
8  Johns.  Rep.  437;  11  Johns.  Rep.  442;  King  v.  Stone,  6 
D.  &  E.  530.  We  think  this  is  a  material  and  substan- 
tive error,  and  one  which  can  not  be  cured  by  intend- 
ment; and  therefore  the  judgment  and  proceedings  of 
the  Circuit  Court,  subsequent  to  the  plea  of  the  prisoner, 
and  the  making  up  of  the  issue  to  the  country,  must  be 
reversed  and  set  aside,  and  the  cause  remanded,  with  in- 
structions to  award  a  venire  de  novo,  and  proceed  to  trial 
with  the  issne,  &c. 

Per  Curiam. — The  judgment  is  reversed,  &c.  Cause  re- 
manded, &c. 

Sweetser,  for  the  plaintiff. 

Broion,  Herod,  and  Lane,  for  the  state. 

(1)  Vide  Hudson  v.  The  State,\o\.  1  of  these  Rep.  317.  In  a  note  to  that 
case,  a  statute  of  1828  is  referred  to,  which  authorizes  certain  questions  to 
be  asked  of  the  jurors,  as  to  their  having  formed  or  expressed  any  opinion 
relative  to  the  guilt  or  innocence  of  the  pi-isoner.  There  is  a  similar  stat- 
ute of  1831.     R.  C.  1831,  p.  197. 


[*480]  *Raburn  V.  Shortridge, 

Judgment — Injunction  Against — A  judgment  by  default  naving  been 
rendered  against  A.,  on  a  note  previously  executed  by  him  to  B.,  the 
former  filed  a  bill  in  chancery  to  enjoin  the  judgment — stating  the  note 
to  have  been  given,  and  the  judgment  rendered,  on  a  certain  condition 
which  had  not  been  complied  with.  The  answer,  which  was  supported 
by  the  deposition,  denied  the  complainant's  allegations.  The  Court  dis- 
missed the  bill. 

Same — Same — Remedy. — The  want  or  failure  of  consideration  is  a  good 
defence  to  an  action  at  law  on  a  note,  but  if  the  defendant  neglects  to 
make  this  defence,  and  suffers  judgment  by  default,  he  can  not,  without 
a  strong  case,  be  relieved  in  chancery  (a). 

Will — Rights  of  Devisee  and  Grantee. — If  land  devised  be  afterwards 
sold  by  the  devisor  to  a  stranger,  the  devisee  takes  nothing  by  the  devise. 

(a)  12Ind.  42;  6  id.  127. 

(566^ 


NOVEMBER  TERM,  1831.  480-481 


Riibuni  V.  Shortridge. 


APPEAL  from  the  Montgomery  Circuit  Court. 

M'KiNNEY,  J. — This  is  a  suit  iu  equity.  On  iinal  hear- 
ing upon  bill,  answer,  and  depositions,  an  injunction 
granted  was  dissolved,  and  ten  per  cent,  decreed  upon  the 
judgment  enjoined,  with  costs,  &c.  From  that  decree  the 
complainant  has  appealed. 

The  bill  charges  that  the  complainant,  on  the  17th  day 
of  December,  1825,  executed  a  note  to  the  defendant  for 
the  sum  of  100  dollars,  upon  which  judgment  was  ren- 
dered against  him  by  default  at  the  September  term,  1826, 
of  the  Montgomery  Circuit  Court;  that  the  note  was 
given,  and  the  judgment  rendered,  upon  the  express  con- 
dition that  the  defendant  should,  as  soon  as  judgment  was 
rendered,  join  with  his  wife  in  the  conveyance  of  121  acres 
of  land  to  one  Joseph  Corbett;  that  said  land  was  devised 
to  Emily  Heath,  now  the  wife  of  the  defendant,  by  the 
will  of  William  Nicholson,  deceased,  dated  the  11th  of 
September,  1822,  and  directed  to  be  conveyed  to  her  by 
John  Raburn,  Sen. ;  that  after  said  devise  the  testator 
sold  the  land  to  Joshua  Baxter,  by  whom  it  was  sold  to 
Joseph  Corbett,  who  was  to  receive  a  deed  from  John 
Raburn,  Sen.,  upon  the  death  of  the  testator ;  that  the 
testator,  in  lieu  of  the  land  devised  to  Emily  Heath,  en- 
tered 100  acres,  which  were  given  to  her;  that  the  de- 
fendant and  his  wife  have  refused  to  receive  a  deed  from 
John  Raburn,  Sen.,  according  to  the  will  of  the  testator, 
to  prevent  a  title  being  made  to  Corbett;  that  the  com- 
plainant purchased  of  the  wife  of  the  defendant  the  100 
acres  of  land  given  to  her  by  William  Nicholson, 
[*481]  deceased,  and  ^received  a  deed  for  the  same  ;  that 
at  the  time  of  the  purchase  he  gave  the  defend- 
ant the  note  for  100  dollars,  in  consideration  that  he  and 
his  wife  should  receive  a  deed  from  John  Raburn,  Sen., 
for  the  121  acres  devised  by  William  Nicholson,  and  con- 
vey the  same  to  Baxter,  to  enable  him  to  convey  to  Cor- 
bett; that  the  defendant  had  an  execution  issued  on  tho 

(.567) 


481  SUPREME  COURT  OF  INDIANA. 

Raburn  v.  Shortridge. 

judgment  against  the  complainant,  and  that  it  was  levied 
on  his  land;  and  prays  an  injunction. 

The  defendant  answering,  positively  denies  that  the 
consideration  of  the  note,  upon  which  the  judgment  was 
rendered,  was  that  stated  by  the  complainant,  but  says 
that  the  note  was  given  for  his  wife's  share,  as  one  of  the 
heirs  of  William  Nicholson,  deceased,  of  a  lot  of  land  en- 
tered by  said  Nicholson,  and  which  he  and  his  wife  sold 
and  conveyed  to  complainant.  He  denies  that  he  knew 
of  the  sale  by  Nicholson  of  121  acres  of  land  to  Baxter, 
or  of  the  sale  by  Baxter  to  Corbett;  denies  that  he  had 
any  knowledge  of  100  acres  of  land  being  given  to  his 
wife,  in  lieu  of  tlie  121  acres  to  be  conveyed  to  her  by 
John  Raburn,  Sen.;  denies  his  refusing  to  receive  a  deed 
from  John  Raburn,  Sen.,  to  prevent  a  title  being  made 
to  Corbett.  But  he  says  that  some  considerable  time 
after  the  rendition  of  the  judgment  against  the  complain- 
ant on  the  note  for  100  dollars,  a  deed  of  some  kind  was 
shown  to  him  which  he  refused  to  receive,  having  previ- 
ously given  authority  to  an  agent  to  receive  a  deed  from 
John  Raburn,  Sen.,  who  lived  in  the  state  of  Ohio. 

It  is  well  settled  that  when  relief  is  asked  in  a  Court 
of  chancery,  the  bill,  on  its  face,  should  present  a  case 
founded  on  some  of  the  grounds  of  its  jurisdiction,  which 
will  warrant  its  interposition.  The  Court  can  not  delve 
into  extrinsic  matter,  or  create  an  issue  dehors  the  plead- 
ings of  the  parties,  to  sustain  a  bill  or  afford  relief.  This 
remark  arises  from  an  examination  of  the  depositions 
taken  in  this  case.  They  are  contradictory,  and  embrace 
matter  most  of  which  is  entirely  inapplicable  and  irrele- 
vant to  the  issue  before  us.  The  same  directness  of  tes- 
timony, required  in  an  issue  at  law,  is  necessary  in  an 
issue  in  chancery.  The  rules  of  evidence  are  the  same  in 
both  Courts.  In  neither  can  you  support  an  issue  by  tes- 
timony extrinsic  and  foreign  to  it.  Thus  tested  it  is  ob- 
vious that  little  of  the  testimonyin  this  case  is  properly 
applicable  to  it. 

(568) 


NOVEMBER  TERM,  1831.  481-482 

Raburn  i.  Shortridge. 

If  the  note  complainant  executed  was  without 
[*482]  ^consideration,  or  the  consideration  failed,  the 
failure  of  consideration  would  have  been  a  good 
defence  at  law.  Leonard  v.  Bates,  1  Blackf.  Rep.  172. 
If  the  defendant  instead  of  availing  himself  of  such  de- 
fence, waives  it,  and  suffers  judgment  to  go  against  him 
by  default,  a  strong  case  must  be  made  out  or  a  Court  of 
chancery  will  not  interfere.  Clay,  Sfc,  v.  Foy,  3  Bibb, 
248.  We  think  that,  in  the  examination  of  the  bill  no 
such  case  is  presented.  There  appears  a  palpable  incon- 
gruity in  the  allegation  of  the  complainant,  "that  the 
note  was  given,  and  the  judgment  rendered,  upon  the 
express  condition  and  understanding  that  the  defendant 
should,  as  soon  as  the  judgment  was  rendered,  join  with 
his  wife  in  the  conveyance  of  121  acres  of  land  to  one 
Joseph  Corbett,"  &c.  It  would  seem  from  this  allegation 
that  the  execution  of  the  note  and  the  rendition  of  the 
judgment  were  simultaneous.  This  is,  however,  opposed 
by  the  previous  statement,  that  the  note  was  executed  on 
the  17th  of  December,  1825,  and  the  judgment  rendered 
in  September,  1826.  It  may  be  asked,  was  the  note  exe- 
cuted with  a  view  to  the  judgment  by  default,  and  was 
the  consideration  of  such  judgment  a  constituent  part  of 
the  consideration  of  the  note?  If  the  consideration  of 
the  note,  and  that  for  the  judgment  by  default,  were  dis- 
tinct, the  question  arises,  is  the  equity  relied  on  founded 
on  the  failure  of  the  consideration  of  the  note,  or  upon 
the  non-performance  of  the  condition  inducing  the  ren- 
dition of  the  judgment?  If  upon  the  failure  of  the  con- 
sideration of  tlie  note,  we  do  not  think  the  complainant 
has  oftered  a  sufficient  cause  to  justify  the  interposition 
of  a  Court  of  equity.  He  had  an  available  defence  at 
law  and  neglected  to  use  it.  Vigilantibus  non  dormienti- 
hus  leges  subveniunt.  If  the  relief  asked  is  predicated  upon 
the  latter,  in  the  absence  of  fraud,  and  fraud  is  not  spe- 
citicall\^  charged  in  the  bill  and  is  not  to  be  presumed,  the 
complainant  is  not  entitled  to  it. 

(569) 


482-483    SUPREME  COURT  OF  INDIA^-A. 

Raburn  v.  Shortridge. 

Another  allegation  in  the  bill  may,  however,  aid  in  the 
application  of  that  just  noticed.  It  is  the  allegation, 
"that  the  consideration  of  the  note  was  that  the  defend- 
ant and  his  wife  should  receive  a  title  from  John  Rabnrn, 
Sen.,  to  the  121  acres  of  land,  and  convey  the  same  to 
Baxter,  to  enable  him  to  convey  to  Corbett,  under  the 
agreement  made  by  William  Nicholson  in  his  life-time 
with  said  Baxter."  Here  is  another  consideration  al- 
leged for  the  note.  In  this,  the  rendition  of  a 
[*483]  judgment  *upon  the  note  is  not  intimated  as  in- 
ducing its  execution.  These  allegations  are  at 
variance  with  each  other.  The  conclusion  to  which  we 
are  brought  by  the  examination  of  the  first,  is  not 
changed  by  that  of  the  latter. 

The  complainant  also  alleges  that  he  purchased  the  in- 
terest of  the  defendant's  wife  in  the  100  acres  of  land 
given  to  her  by  William  Nicholson,  and  received  a  con- 
veyance of  it  from  the  defendant  and  his  wife;  that  the 
note  was  given,  at  the  time  of  the  purchase  and  convey- 
ance executed,  for  a  consideration  distinct  from  the  pur- 
chase. He,  however,  does  not  state  what  consideration, 
if  any,  he  gave  for  that  interest.  A  conveyance  of  land 
is  always  predicated  upon  a  consideration.  Such  consid- 
eration may  be  either  good  or  valuable.  The  complain- 
ant purchased  and  received  a  conveyance  of  the  defend- 
ant's wife's  share  of  the  100  acre  tract,  but  is  silent  as  to 
the  consideration. 

The  reference  to  the  will  of  William  Nicholson  does 
not  strengthen  the  complainant's  case.  A  will  is  without 
effect  until  the  death  of  the  testator.  If  William  Nichol- 
son, by  his  will  in  1822,  devised  land,  the  interest  of  the 
devisee  would  be  divested  by  a  sale  subsequently  made 
by  him.  Such  a  devise  is  charged  to  have  been  made  to 
Emily  Heath,  the  wife  of  the  defendant,  and  a  sale  to  have 
been  subsequently  made  to  Baxter.  If  the  sale  was  made 
and  was  valid,  the  devise  to  Emily  Heath  became  inop- 
erative, and,  as  far  as  we  can  perceive,  her  agency  was  not 

(570) 


NOVEMBER  TERM,  IS-Sl.  483-484 

Pennybaker  v.  The  State. 

necessary  to  conlirm  the  title  of  the  testator's  vendee.  If 
the  agreement  between  the  testator  and  Baxter  was  parol, 
such  acts  may  have  been  mutually  performed  as  would 
have  taken  the  case  out  of  the  operation  of  the  statute 
of  frauds,  and  have  enabled  its  enforcement.  The  right 
to  enforce  would  have  been  incident  to  the  agreement, 
and  not  have  attached  to  the  devise  by  the  vendor.  The 
bill  does  not  show  whether  the  agreement  between  Wil- 
liam Nicholson  and  Baxter  is  subsisting  and  in  force,  or 
abandoned. 

The  positive  denial  of  the  answer,  and  the  considera- 
tion stated,  are  fully  sustained  by  the  depositions  of  James 
Still  and  Morgan  Shortridge,  witnesses  to  the  execution 
of  the  note  and  of  the  conveyance  of  the  land  which  the 
complainant  alleges  he  purchased  of  defendant's 
[*484]  wife.  These  witnesses  are  *unimpeached.  Their, 
testimony  is  entitled  to  great  weight.  The  de- 
cree of  the  Circuit  Court  must  be  affirmed. 

Per  Curiam. — The  decree  is  atMrmed,  with  3  per  cent. 
damages  and  costs. 

Kinney,  for  the  appellant. 
Fletcher,  for  the  appellee. 


Pennybaker  v.  The  State. 

Husband  and  Wife — Crime  of  Wife. — If  a  wife  commit  an  indictable 
offence,  without  the  presence  or  coercion  of  her  husband,  she  alone  is  re- 
sponsible for  the  offence  (a.) 

ERROR  to  the  Owen  Circuit  Court. 

M'Kinney,  J. — This  was  an  indictment  for  retailing 
spirituous  liquors  without  a  license.  Plea,  not  guilty; 
and,  by  consent,  the  cause  was  submitted   to   the   Court 

(«)  See  51  Ind.  192;  44  Id.  91  ;  43  Id.  550. 

(571) 


484-485   SUPREME  COURT  OF  INDIANA. 


Bruner  and  Others  v.  Manville  and  Others. 

without  the  intervention  of  a  jury.  The  defendant  was 
found  guilty,  and  judgment  rendered  against  him.  A  bill 
of  exceptions,  taken  to  the  opinion  of  the  Court  overrul- 
ing a  motion  for  a  new  trial,  furnishes  the  evidence  upon 
which  the  judgment  of  the  Court  was  founded. 

A  single  question  is  presented  for  our  consideration. 
Can  the  judgment  be  sustained  on  evidence  that  the 
whisky,  charged  in  the  indictment  to  have  been  sold  by 
the  defendant,  was  sold  by  his  wife,  he  being  absent  from 
his  house,  and  no  authority  proved  to  have  been  given  ? 
"We  think  the  evidence  insufficient  to  establish  the  liabil- 
ity of  the  defendant.  The  presumption  of  agency  is  in- 
admissible. The  wife,  committing  offences  without  the 
presence  or  coercion  of  her  husband,  is  regarded  as  a  feme 
sole.  She  is  alone  responsible.  1  Russell  on  Crimes,  25; 
1  Chitty's  Bl.  348  and  note  51. 

Per  Curiam. — The  judgment  is  reversed.  To  be  certi- 
fied, &c. 

Whitcomb,  for  the  plaintifi". 

Brown,  for  the  state. 


[*485]     *Bruner  and  Others  v.  Manville  and  Others. 

Fraudulent  Judgment  and  Conveyance — Remedy  of  Creditors. — A 
person  against  whom  suits  Avere  depending  for  bona  Jide  debts,  confessed  a 
judgment  in  favor  of  another,  without  consideration,  to  defraud  his 
creditors.  The  debtor's  real  estate  was  purchased,  under  an  execution  on 
til  is  judgment,  by  the  judgment-creditor.  Judgments  were  afterwards 
obtained,  by  the  bona  fide  creditor.*,  in  their  respective  suits,  and  execu- 
tions issued  thereon  and  returned  "no  property  found."  The  Court  on  a 
bill  filled  hy  \.\\e  bona  fide  creditors,  set  aside  the  fraudulent  judgment, 
execution,  and  sale,  and  ordered  the  land  to  be  sold  to  satisfy  the  com- 
plainants' demands. 

M'KiNNEY,  J. — Suit  in  chancery,  certified  ft-om  the 
Knox  Circuit  Court,  prior  to  a  decree,  the  President  Judge 
liuving  been  of  counsel  for  one  of  the  parties. 

(572) 


NOVEMBER  TEHM,  1831.  485-486 


Bruner  and  Others  r.  Manville  and  Others. 


The  bill  is  filed  by  Bruner  in  behalf  of  himself  and 
Clark  and  Graeter,  jadgment-creditors  of  Charles  Allen, 
deceased.  It  charges  that  Charles  Allen,  without  consid- 
eration, and  to  defraud  his  creditors,  on  the  27th  of  Sep- 
tember, 1824,  in  the  Knox  Circuit  Court,  confessed  judg- 
ment in"  favor  of  Charles  Manville  for  the  sum  of  3,013 
dollars  and  50  cents;  that  execution  was  sued  out  on  the 
succeeding  day,  and  levied  on  all  the  real  and  personal 
estate  of  the  defendant  Allen ;  that  it  was  sold,  the  former 
being  600  acres  of  land,  for  305  dollars,  and  the  latter  for 
277  dollars  and  12|  cents ;  that  it  was  all  purchased  by 
the  said  Charles  Manville  ;  that  the  execution  issued  and 
the  sale  was  made  fraudulently,  by  agreement  between 
the  parties,  to  defraud  the  creditors  of  Allen.  The  death 
of  Allen,  and  the  grant  of  administration  on  his  estate  to 
Charles  Manville,  on  the  7th  of  May,  1825,  are  stated.  It 
further  charges,  that  the  complainant  and  the  other  judg- 
ment-creditors respectively  recovered,  in  theKnox  Circuit 
Court,  judgments  against  the  said  Charles  Manville,  ad- 
ministrator of  Charles  Allen,  deceased — the  complainant, 
on  the  23d  of  March,  1827,  for  246  dollars  and  50  cents— 
the  said  Clark,  on  the  22d  of  August,  1826,  for  168  dollars 
and  50  cents— and  the  said  Graeter,  on  the  20th  of  March, 
1827  ;  that  executions  on  said  judgments  were  issued  on 
the  9th  of  April,  1827,  and  each  returned  "  no  property 
found;"  that  said  judgments  are  unpaid,  and  there  is  no 
property  of  the  said  Allen  by  which  they  can  be  satisfied. 

The  death  of  Charles  Manville  is  also  charged, 
[*486]    and  the  grant  of  =f=administration  on  his  estate  to 

Eli  Manville,  one  of  the  defendants.  The  heirs  of 
Charles  Allen  and  of  Charles  Manville,  and  the  adminis- 
trator of  the  latter  are  made  defendants.  It  prays,  1st,  an 
injunction  to  restrain  the  administrator,  Eli  Manville, 
from  procuring  an  order  to  sell  the  land  described  in  it ; 
and  2d,  that  the  judgment  confessed  by  Charles  Allen 
in   favor  of  Charles  Manville  be  set  aside,  and  that  the 

(573) 


486         SUPREME  COURT  OF  INDIANA. 

Bruner  and  Others  v.  Manville  and  Others. 

land  purchased  by  said  Charles  Manville  be  subjected  to 
the  judgments  in  favor  of  the  complainants. 

The  bill  was  taken  as  confessed  against  the  adminis- 
trator for  want  of  an  answer,  and  answered  by  the  guard- 
ians ad  litem  of  the  heirs,  and  byWilkins  and  his  wife 
Sarah,  late  Sarah  Manville.  Its  allegations  are  not*  denied, 
but  proof  required.  The  testimony  fully  supports  the 
charges  in  the  bill.  The  avowed  object  of  the  parties  was 
to  protect  the  propert}^  of  Allen  from  the  claims  of  his 
creditors.  Suits  instituted  by  the  complainants  were 
pending  at  the  term  the  judgment  was  confessed.  The 
law  permits  a  debtor  to  prefer  one  creditor  to  another, 
but  this  must  be  done  bona  fide.  The  vested  rights  of  others 
can  not  be  affected.  M'llenomy  v.  Boosevclt,  3  Johns.  Ch. 
Rep.  446.  If  Allen  had  been  indebted  to  Manville  to  the 
amount  of  the  debt,  the  judgment  would  have  been  valid. 
The  testimony  shows  the  contrary.  Shall  this  judgment 
then  operate  to  the  prejudice  of  Allen's  creditors?  We 
think  not.  The  fraud  with  which  it  is  tainted  avoids  it. 
The  complainants  have  used  the  proper  diligence.  They 
are  entitled  to  relief.  It  is  well  settled  that  equity  will 
relieve  against  judgments  obtained  by  fraud.  Reigal  v. 
Wood,  1  Johns.  Ch.Rep.  402;  1  Madd.  Ch.  Rep.  236.  The 
judgment  thus  confessed  is  void.  It  created  no  valid  lien 
upon  the  land  of  Allen.  The  title  of  the  purchaser,  him- 
self a  party  to  the  fraud,  can  not  be  sustained.  Livingston 
V.  Huhhsand  others,  2  Johns,  Ch.  Rep.  512. 

Per  Curiam. — It  is  decreed,  &c.,  that  the  judgment  con- 
fessed, &c.,  the  execution,  sale,  sheriff's  deed,  &c.,  are 
fraudulent  and  void,  &c. ;  and  that  the  land  be  sold,  &c., 
to  satisfy  the  complainants,  &c. 

Judah,  for  the  complainants. 

Kinney,  for  the  defendants. 

END  OF  NOVEMBER  TEEM,  1831. 
(574) 


AN  INDEX 


THE  PRINCIPAL  MATTERS 


CONTAINED  IN  THIS  VOLUME. 


ABATEMENT. 

See  Corporation,  1. 

1.  To  an  action  of  assumpsit  by  two 
plaintiffs,  the  defendant  pleaded  in 
abatement  that  one  of  the  plaintiffs 
had  died  since  tlie  commencement 
of  the  suit.  Held,  that,  at  common 
law,  the  plea  was  good. — Meek  v. 
Ruffner 23 

2.  The  statute  of  ]S'2o  changed  this 
law,  and  authorized  the  suit  to 
proceed  in  the  name  of  the  survi- 
vor, if  the  cause  of  action  survived, 
upon  a  suggestion  on  record  of  the 
other's  death Ibid. 

3.  If  a  feme  sole  marry,  pending  a 
suit  against  her,  the  suit  does  not 
abate;  but  the  plaintiff"  may  pro- 
ceed against  her  alone,  without  no- 
ticing the  marriage. — Sackelt  v.  Wil- 
gon 85 

4.  If  a  capias  ad  respondendum  be 
issued  against  two,  and  be  executed 
on  one  only,  the  suit  abates  as  to 
the  other  on  whom  the  writ  was 
not  served  ;  and  no  judgment  can 
be  rendered  against  him. —  Glide- 
well  et  al.  v.  M'Qmujhey 359 


ACCORD  AND  SATISFACTION. 

See  Former  Recovery,  4 ;   Plead- 
ing, 18. 

ACKNOWLEDGMENT. 

See  Conveyance. 

ADMINISTRATORS. 

See  Executors  and  Administra- 
tors. 

ADMISSIONS. 

See  Evidence,  3,  9 ;  Partnership, 

4,6-8. 

ADULTERY. 

See  Slander,  2. 

If  a  man  have  criminal  intercourse 

with  a  married  woman,  the  ofTence 

is  adultery  and  not  fornication.— 

The  State  v.  Pearce 318 

AFFIDAVIT. 
See  Attachment,  2, 3;  Continuance, 
2 ;  Evidence,  1 1 ;  Jury,  5 ;  Prac- 
tice, 3. 

AGENT. 
See  Principal  and  Aoent. 


(575) 


487-488 


INDEX. 


AGREEMENT. 
See  Contract  ;  Fkaud?,  Statute  of. 

ALIMONY.  " 
See  Fraudulent  Conveyance,  3 ; 

Vendor  and  Purchaser,  24. 
If  a  wife  obtain  a  decree  for  a  di- 
vorce and  for  a  certain  sum  as  ali- 
mony, the  decree  for  the  alimony 
is  a  lien  on  the  real  estate  of  the 
husband. — Frakes  v.  Brown 295 

AMENDMENT. 

See  Ejectment,  6 ;  Executors  and 
Administrators,  11. 

A  declaration  in  covenant,  not  show- 
ing the  writing  declared  on  to  be 
under  seal,  was  amended  by  the 
insertion  of  words  describing  the 
instrument  as  a  writing  obligatory. 
Held,  that  this  was  an  amendment 
in  substance,  and  entitled  the  de- 
fendant, under  the  statute,  to  a 
continuance. — Kelly  v.  Duignan  el 
«/ 420 

ANSWER. 

See  Chancery,  13-15,  18-21,  24,  26, 

27,  30 ;  Evidence,  1 . 

APPEAL. 

See  Costs,  4,  5. 

APPEARANCE. 
See  Inquiry,  Writ  of,  1. 

ARREST. 

The  arresting  of  an  ofl'ender,  and  the 
re-taking  of  him  on  fresh  pursuit 
after  an  escape,  constitute  but  one 
effective  arrest.— Coojofr  v.  Adams 
et  al 294 

ASSAULT. 
See  Indictment,  ],  2 

ASSAULT  AND  BATTERY. 

See  Justice  of  the  Peace,  1,  2; 

Slander,  1. 

ASSESSMENT  OF  DAMAGES. 
See  Damages  ;  Demurrer  to  Evi- 
dence, 3. 


ASSIGNMENT. 

See  Bond,  1 ,  4,  5  ;  Judgment,  6,  7  ; 
Promissory  Notes,  2-7. 


ASSIGNMENT  OF  BREACHES. 
See  Bond,  9 ;  Damages,  7. 

ASSUMPSIT. 
See  Condition  Precedent,  3 ;  Con- 
tract ;  Parties,  3  ;  Vendor  and 
Purchaser,  12. 

ATTACHMENT. 
See  Replevin,  6. 

1.  When  a  creditor  comes  in,  during 
the  pendency  of  an  attachment 
commenced  by  another,  to  obtain 
a  judgment  under  the  statute,  his 
claim  must  be  set  forth  with  the 
same  certainty  that,  in  any  other 
action,  is  required  in  a  declaration. 
Gilly  v.  Breckenridye ...100 

2.  An  affidavit  in  attachment  can  not 
be  objected  to  for  not  describing 
the  nature  of  the  debt,  if  the  same 
be  described  in  a  declaration  filed 
in  the  cause. — O'Brien  et  al  v.  Dan- 
iel et  al 290 

3.  The  affidavit,  in  the  case  of  a  do- 
mestic attachment,  must  state  the 
county  in  which  the  debtor  had 
recently  resided Ibid. 

ATTACHMENT-BOND. 
See  Bond,  8 ;  Damages,  6,  7 ;  Plead- 
ing, 23. 

ATTACHMENT  J^OR  CONTEMPT. 
See  Trespass,  4. 

ATTESTING  WITNESS. 
See  Witness,  1,  2,  4. 

ATTORNEY. 
See  Retraxit. 
A.,  an  attorney,  received  a  note  from 
the  payee  for  collection,  and,  with- 
out the  payee's  knowledge,  deliv- 
ered it  to  B.,  another  attorney,  to 
collect.  B.  collected  the  monev 
and  failed  to  pay  the  same  to  the 
payee.  Held,  that  A.  was  liable  to 
the  payee  for  the  money  collected 
by  B.— Pollard  v.  Rowland ..22 

AVOWRY. 
See  Replevin,  5,  7. 


B 


BANK  OF  INDIANA.  FARMERS 

AND  MECHANICS'. 
A   promissory  note  dated   the  1st  of 

(576) 


INDEX. 


448-489 


July,  1826,  payable  to  the  Presi- 
dent and  Directors  of  the  Farmers 
and  Mechanics'  Bank  of  Indiana, 
at  their  <  fKce  of  discount  and  de- 
posit at  Lawrenceburgh,  on  the  1st 
of  July,  1829,  is  not  entitled,  un- 
der the  statute,  to  days  of  grace ; 
nor  is  it  a  paper  in  which  the  cor- 
poration is  prohibited  by  its  char- 
ter from  holding  an  interest. — John 
et  al.  V.  The  /l(r//K'/s  and  Mechanics' 
Bank  of  InrJinna 367 

BASTARDY. 

1.  An  order  by  the  Court  of  filiation 
and  bastardy  may  be  enforced  by 
scire  facias  or  debt  on  the  order 
against  tlie  putative  father,  or  on 
the  recognizance  against  those  who 
have  entered  into  it,  in  the  name 
of  the  state,  on  the  relation  of  the 
party  entitled. — Harrington  el  al.  v. 
Ferguson 42 

2.  The  scire  facias  or  declaration,  in 
such  case,  must  describe  the  cause 
of  action  of  the  party  claiming, 
show  Ijy  what  authority  he  has  had 
the  care  of  the  child,  and  why  he 
is  entitled  to  the  benefit  of  the  or- 
der for  maintenance Ibid. 

3.  The  prosecution,  under  tlie  statute 
for  the  support  of  illegitimate  chii- 
deren,  should  be  in  the  name  of  the 
state. — Dickerson  v.  Gray 230 

4.  The  order  of  the  Court,  in  a  case 
of  bastardy,  after  stating  what  sum 
the  father  must  pay  for  the  main- 
tenance of  the  child,  should  be — 
that  the  defendant  pay  the  money 
to  the  person  who  shall  maintain 
the  child,  or  become  entitled  to  the 
same  bylaw;  and  that  he  enter 
into  a  recognizance  with  one  or 
more  sureties,  for  the  performance 
of  the  order Ibid. 

5.  The  provisions  of  the  77th  section 
of  the  act  of  1824,  relative  to  crimes 
and  punishments,  requiring  certain 
actions  to  be  brought  within  one 
year  next  after  the  oflence  commit- 
ted, do  not  apply  to  prosecutions 
under  the  act  for  the  support  of  il- 
legitimate children. —  The  Stale  v. 
Stafford 412 

BILL  OF  EXCEPTIONS. 

See  Error,  9. 


BILLS  OF  EXCHANGE. 
See  Pro.missory  Notes,  2. 

A^OL.  II.— 37 


1.  A  bill  drawn  on  an  administrator 

in  these  words,  "  Please  to  settle 
80  dollars  out  of  my  part  of  tlie 
estate,  with  Nathan  Harness,  and 
this  my  order  shall  be  your  re- 
ceipt for  the  same,"  is  not  a  valid 
bill  of  exchange;  being  payable 
only  out  of  a  particular  fund. — 
Mills  et  al.  v.  Kiu/kendall 47 

2.  A  declaration  against  the  acceptor 
of  such  a  bill,  depending  alone  for 
its  support  upon  the  bill  and  ac- 
ceptance, contains  no  cause  of  ac- 
tion, whether  tlip  acceptance  be  ab- 
solute or  conditional Ibid 

3.  If  tlie  payee  of  a  bill  of  exchange 
accepted  for  the  drawer's  accom- 
modation, give  time  to  the  drawer 
without  llie  acceptor's  knowledge, 
the  latter  is  not  thereby  discharg- 
ed ;  though  the  payee  knew  that 
the  acceptance  was  made  for  the 
drawer's  accommodation.  —  Lam- 
bert V.  Sanford 137 

BOARD  OF  JUSTICES. 

See  Seat  of  Justice,  1. 
The  Board  of  Justices  may  be  sued, 
in  their  corporate  cajiacity,  for  any 
legal  demand  against  the  county. — 
Blackuell  v.  The  Board  of  Justices  of 
Laivrence  County 153 

BOND. 

See  Damages,  4;  Executors  and 
Administrators,  6-9 ;  Lost  Bond  ; 
Mortgage,  1,2;  Pleading,  15,  22  ; 
Vendor  and  Purchaser  3,  21. 

1.  The  statute  .secures  to  the  obligor 
the  same  equitable  defence  in  an 
action  by  the  assignee,that  he  would 
have  been  entitled  to  had  the  action 
been  by  the  obligee. — Davis  v.  Clem- 
ents   -^ 

2.  In  an  action  on  a  penal  bond,  con- 
ditioned for  the  delivery  of  prop- 
erty at  a  certain  time  and  place, 
the  declaration  need  not  aver  a 
demand  of  the  i)roperty  at  the 
place,  Aliler,  if  the  condition  be 
for  the  payment  of  money. — Mitch- 
ell et  al.  v' Merrill 87 

3.  The  condition  of  a  delivery-bond 
.showed  that  tiie  property  was  to 
be  delivered  tothe))er«on  to  whom 
the  execution  was  directed,  but  it 
did  not  stale  his  name.  Held,  that 
the  omission  of  the  sheriff  's  name 
did  not  render  the  bond  void,  but 
that   the  ambiguity  thereby  occa-' 


(577) 


48P-490 


INDEX. 


sioned  might  be  explained  by  ex- 
trinsic evidence. — Evans  et  al.  v. 
Shoemaker 237 

4.  If  the  maker  of  a  note  be  notori- 
ously insolvent,  the  assignee  may 
sue  the  assignor  without  having 
previously  sued  the  maker. —  Youse 
V.  M'C'reary 243 

5.  If  the  assignee  of  a  note  can  not 
collect  the  money  from  the  maker, 
he  may  recover  from  the  assignor 
the  amount  paid  for  the  assign- 
ment, together  with  interest  and 
costs  of  the  suit  against  the  maker. 
The  amount  of  the  note  is  prima 
facie  evidence  of  the  price  received 
by  the  assignor;  but  he  is  at  lib- 
ertv  to  prove  the  real  consideration 

Ibid. 

6.  Goods  were  taken  in  execution ; 
and  a  delivery-bond  payable  to 
the  execution-plaintifl'  was  execu- 
ted by  the  debtor  and  his  surety, 
conditioned  for  the  delivery  of  the 
property  in  as  good  order  as  it  was 
at  the  date  of  the  bond.  Debt  on 
the  bond.  Breach,  the  non-deliv- 
ery of  the  property  in  as  good  order 
as  it  was  when  the  bond  was  exe- 
cuted. Demurrer  to  the  declaration, 
and  judgment  for  the  plaintifT. 

Held,  on  the  execution  of  the  writ  of 
inquiry,  that  the  sheriff  was  a  com- 
petent witness  to  prove  the  value 
of  the  property.  Held,  also,  that, 
in  the  ab.sence  of  all  testimony  as 
to  the  value  of  the  property,  the 
amount  of  the  execution  was  the 
proper  measure  of  damages.  Held, 
also,  that  the  quantum  of  damages 
sustained  by  the  plaintiff  for  the 
breach  of  contract  was  the  only 
subject  of  inquiry  before  the  jury. 
— Chinn  et  al.  v.  Perry 268 

7.  In  an  action  on  a  sheriff's  bond 
against  the  principal  and  his  sure- 
ties, for  money  collected  by  the 
sheriff  on  an  execution  in  favor  of 
the  plaintiff,  the  defendant  can  not 
plead  that  there  is  no  judgment  on 
which  the  execution  issued. —  The 
State  V.  ificA-s  et  al .....236 

8.  An  attachment-bond  must  be  ap- 
proved of  by  the  clerk  who  issues 
the  writ.  His  approval,  however, 
is  not  conclusive  but  only   jrrima 

facie  evidence  of  the  sufficiency  of 
the  sureties. —  Blaney  v.  Findley  el  al. 

338 

9.  On  overruling  a  demurrer  to  a 
declaration,  in  an  action  on  a  iH'ual 


bond  conditioned  for  the  perform- 
ance of  covenants,  in  which  decla- 
ration the  breaches  are  assigned, 
the  order  of  the  Court  is — that  the 
plaintiff  ought  to  recover  his  said 
debt  and  his  damages  on  occa-ion 
of  the  detention  thereof;  but  that 
judgment  should  not  be  given  until 
the  truth  of  the  breaches  assigned 
is  inquired  into,  and  the  damages 
are  assessed. 

After  this,  if  the  Court,  by  agreement 
of  the  parties,  have  inquired  into 
the  damages,  the  opinion  is  given 
and  entered — that  the  plaintiff  has 
sustained  damages,  by  reason  of 
the  breaches  assigned, to  the  amount 
of . 

The  next  and  last  steps  to  be  taken 
are,  the  rendition  of  the  final  judg- 
ment for  the  debt  in  the  declara- 
tion mentioned  with  costs  ;  and  the 
award  of  execution  for  the  damages 
assessed  with  costs. —  Glidewell  et  al 
M'Gaughey 359 

10.  A  declaration  on  a  bond  for  se- 
curity for  costs,  stating  that  the 
plaintiff  sues  for  himself  and 
others,  officers  of  the  Court,  is 
bad.  Any  person  interested  may 
sue  for  himself  on  the  bond,  and 
obtain  a  judgment  for  the  penalty ; 
and,  afterwards,  any  other  person 
interested,  may,  upon  that  judg- 
ment, have  a  scire  facias.  No  one, 
however,  has  a  right  to  sue  for 
himself    and    othei's,  officers,   &c. 

Ibid. 

11.  It  is  not  sufficient,  in  an  action 
on  such  a  bond,  to  state  that  the 
defendant  has  not  paid  the  costs, 
without  setting  out  the  amount  of 
the  costs  incurred Ibid. 

12.  After  a  lapse  of  20  years,  with- 
out any  acknowledgment  of  the 
debt,  the  payment  of  a  writing  ob- 
ligatory may  be  presumed.-0'i?n'e?i 
el  cd.  V.  Coulter  et  al 421 

BREACH  OF  THE  PEACE. 
See  Justice  of  the  Peace,  1,  2. 


CESTUI  QUE  TRUST. 

See  Trust  and  Trustee,  4,  5,  9; 

Vendor  .\nd  Purchaser,  34. 


78) 


CHALLENGE. 
See  Jury,  4,  9-12. 


INDEX. 


490 


CHANCERY. 

See  Disseisin,  3 ;  Ejectment,  1 ;  Evi- 
dence, 1  ;  Executors  and  Admin- 
istrators, 15,  18  ;  Fraudulent 
Judgment;  Guardian  and  Ward; 
Mistake,  2 ;  Specific  Perform- 
ance ;  Vendor  and  Purchaser, 
9. 

1.  The  payee  of  a  note,  who  has  sued 
the  makers,  can  not  demur  to  a  bill 
in  chancery  iiled  by  the  latter,  be- 
cause it  charges  the  note  to  be 
usuriou.s  and  prays  a  discovery,  if 
the  complainants  have  brought' the 
principal  and  legal  interest  into 
Court. — Harvey  v.  Crawford  et  aLA?> 

2.  The  bill  in  the  above-named  cause 
having  been  taken  for  confessed, 
and  a  decree  rendered  enjoining 
the  payee's  proceedings  at  law, 
held,  that  costs  might  be  given  to 
the  complainants.  Held,  also,  that 
the  decree  should  secure  to  the 
payee  his  costs  in  the  suit  at  law. 

_  Ibid. 

3.  A.,  holding  a  land-office  certificate 
for  a  tract  of  land,  executed  a  title- 
bond  to  B.  for  a  conveyance  at  a 
future  time  of  part  of  the  land,  and 
put  him  in  possession.  A,  after- 
wards, sold  and  assigned  the  certi- 
ficate to  C,  with  notice  of  B.'s 
equity.  D.,  the  assignee  of  B., 
having  reason  to  fear  that  C.  would 
disturb  his  possession,  and  .sell  to 
a  purchaser  without  notice,  filed  a 
bill  in  chancery  to  enjoin  him  from 

■  doing  so,  and  obtained  a  decree  ac- 
cordingly.— Cupps  V.  Irvin 112 

4.  The  extension  of  the  jurisdiction 
of  Courts  of  law,  in  modern  times, 
to  cases  which  were  formerly  sub- 
jects of  equitable  jurisdiction  only, 
has  not  destroyed  the  jurisdiction 
of  Courts  of  equity. — Peck  et  al.  v. 
Braman  et  al 141 

5.  When  accounts  are  intricate  and 
difficult,  a  bill  in  equity  is  the 
more  usual  and  suitable  proceeding 
to  compel  an  account ;  being  best 
calculated  to  do  justice  between  the 
parties ;  since  the  plaintiff  can 
thereby  obtain  a  discovery  of  books 
and  papers,  and  have  the  benefit  of 
the  defendant's  oath  ;  who,  on  the 
other  hand,  is  entitled  to  all  legal 
and  equiiable  allowances Ibid. 

6.  The  heirs  of  A.,  some  of  whom 
were  infants,  and  his  representa- 
tives filed  a  bill  in  chancery 
against  the  heirs  and  representa- 


(579) 


fives  of  B.  The  bill  stated  that  H., 
the  guardian  of  A.'s  heirs,  having 
contracted  to  sell  their  land  to  C, 
procured  an  order  of  the  Court  in 
Connecticut,  where  the  land  was 
situated,  authorizing  its  sale  by  D. : 
that  D.,  pursuant  to  the  order,  sold 
and  conveyed  the  land  to  C.  for 
1500  dollars,  which  amount  had 
nearly  all  been  received  by  B. ;  that 
bonds  to  the  Court  were  executed 
by  D.  and  E.,  conditioned  that  B. 
should  vest  the  purchase-money  in 
other  land  for  the  heirs  of  A.,  or  lay 
it  out  for  their  nurture,  education, 
or  advancement,  and  should  ac- 
count to  the  Court  when  required, 
or  to  the  heirs  when  they  should 
come  of  age ;  that  B.  having  mar- 
ried the  widow  and  administratrix 
of  A.  became  possessed  of  the  in- 
testate's personal  estate  to  a  con- 
siderable amount:  that  B.  after- 
wards removed  from  Connecticut 
to_  Indiana,  purchased  land  here 
with  the  money  of  A.'s  heirs  re- 
ceived as  aforesaid,  took  the  title 
in  his  own  name  and  died  without 
accounting  to  them,  or  leaving  per- 
sonal property  sufficient  to  pay 
their  claim.  The  bill  prayed  foi 
a  discovery,  relief,  &c. 
Held,  that  a  demurrer  to  the  bill,  on 
the  ground  of  the  complainants' 
remedy  being  at  law,  could  not  be 
sustained ;  the  case  being  within 
the  jurisdiction  of  a  Court  of  chan- 
cery  Ibid. 

7.  A  decree  in  chancery  is  not  bind- 
ing on  a  person  who  was  not  a 
party  to  the  suit. — Brawn  v.  Wyn- 
coop 230 

8.  A  complainant  in  chancery  may, 
on  payment  of  costs,  dismiss  h'is 
bill  at  any  time  before  a  final 
hearing,  provided  he  be  not  in  con- 
tempt.— Smith  V.  Synilh  et  al 232 

9.  The  complainant's  mere  failure  to 
comply  with  an  interlocutory  order 
of  the  Court  does  not  of  itself  so 
place  him  in  contempt  as  to  pre- 
vent him  from  dismissing  his  bill 
on  payment  of  costs Ibid. 

10.  The  return  to  a  subpoena  in 
chancery  against  Abner  M'Carty 
and  John  Pegg,  was  as  follows : 
"  Executed  on  Abner  M'Carty,  the 
25  March,  1826.  John  Pegg  not 
found.  20  March,  1826— R.  John, 
sh'tT."  A  decree,  reciting  that  it 
appeared  to  the  satisfaction  of  the 


400-491 


INDEX. 


Court  that  the  subpoena  had  been 
duly  executed,  was  entered  against 
the  defendants  pro  confesso.  Held, 
that  the  return  was  insufficient  to 
authorize  a  decree. — Pef/g  et  al.  v. 

Capp 257 

11.  A.,  B.,  and  C.  executed  a  note  to 
D.  for  the  payment  of  money.  The 
name  of  C.  was  afterwards  erased 
without  the  knowledge  of  the  other 
obligors,  and  a  judgment  obtained 
against  A.  and  B.  A  bill  was  filed 
by  A.  and  B.  in  order  to  have  the 
judgment  enjoinr-d,  averring  their 
ignorance  of  the  erasure  at  the  time 
of  the  trial  at  law.  Held,  that  the 
erasure  was  a  defence  purely  legal, 
and  that  the  complainants'  igno- 
rance of  the  erasure  as  averred, 
was  no  ground  for  the  interposition 
of  a  Court  of  chancery. — Shelmire 
V.  Thompson  etal 270 

12.  A.  sold  to  B.  a  tract  of  land,  and 
gave  him  a  title-bond  conditioned 
for  the  execution  of  a  deed  for  the 
land,  when  a  patent  for  the  same 
should  be  obtained  from  tlie  United 
States.  A.  had  paid  to  the  United 
States  one-fourth  of  the  purchase- 
money.  B.  executed  his  notes  to 
A.  for  the  price  of  the  land,  pay- 
able part  in  labor  and  part  in 
money,  and  agreed  to  complete  the 
payments  due  to  the  United  States 
on'  the  land.  A.  afterwards  as- 
signed the  land-oHice  certificate  for 
the  land  to  C,  who  had  notice  of 
B.'s  title-bond ;  and  C.  paid  the 
balance  of  the  purchase-money  due 
to  the  United  States,  and  obtained 
a  patent  for  the  land.  B.  filed  a 
bill  in  chancery  against  C,  setting 
out  the  above  facts ;  averring  a  per- 
formance of  the  labor,  and  a  pay- 
ment of  part  of  the  money  payable 
to  A.  ;  and  praying  for  a  convey- 
ance of  the  land.  Held,  that  as  the 
bill  did  not  show  a  payment  or 
tender  of  all  the  money  ])ayable  to 
A.  by  the  contract,  and  a  payment 
or  tender  to  C.  of  the  balance  of 
the  purchase-money  paid  by  him 
to  the  United  States,  it  should  be 
dismissed  for  want  of  equity. — 
D<ni<jhcrty  v.  Humpston 273 

13.  If  exce])tions  be  taken  to  some 
]-art«  of  an  answer  in  chancery,  and 
the  Court  consider  the  exceptions 
valid,  the  defendant  may  be  or- 
dered to  answer  over  so  far  as  the 
exceptions  extend,  but  he  can  not 

(5 


be  required   to    answer  over  gen- 
erally.— Pegg  v.  Davis 281 

14.  If  the  answer  to  any  particular 
charge  in  a  bill  be  not  sufficiently 
explicit,  the  complainant  sliould 
file  exceptions  to  that  part  of  the 
answer ;  but  if  instead  of  doing 
that,  he  acquiesce  in  the  answer, 
the  charge  must  be  proved  or  it 
will  be  disallowed Thid. 

15.  If  any  particular  claim  in  a  bill 
be  not  answered,  the  complninant 
should  insist  on  an  answer,  and  if 
such  answer  be  refused,  he  may 
take  a  decree  pro  tunto  by  confes- 
sion ;  and  then,  if  the  charge  is 
sufficiently  explicit,  it  may  be  re- 
covered without  further  proof.  Bnit 
should  the  complainant,  instead  of 
pursuing  that  course,  bring  the  case 
to  a  hearing  on  the  merits,  he  can 
only  entitle  himself  to  the  claim  by 
proving  it tbid. 

16.  If  the  charge  in  a  bill  he  not 
stated  with  sufficient  certainty,  the 
complainant  can  not,  even  after  a 
decree  pi'o  confesso,  have  a  final  de- 
cree, unless  he  establish  his  demand 
by  satisfactory  evidence Ibid. 

17.  One  of  two  defendants  in  chan- 
cery can  not  be  examined  as  a  wit- 
ness by  the  complainant,  without  a 
special  order  of  the  Court. —  Whee- 
ler et  al.  V.  Emmersnn 293 

18.  It  is  a  general  rule  that  an  an- 
swer in  chancery  is  to  be  taken  as 
true,  unless  it  be  disproved  by  two 
witnesses,  or  by  one  witness  and  cor-' 
roboruting  circumstances. —  Green 
et  al.  v.Vardlman  et  al 324 

19.  This  rule,  however,  does  not  ex- 
tend to  everything  which  tJie  an- 
swer contains  in  favor  of  the  de- 
fendant:  it  applies  only  to  that 
part  of  the  answer  which  is  direct- 
ly responsive  to  the  ciiarges  in  the 
bill Ibid. 

20.  Matters  which  are  set  up  in 
avoidance,  and  which  are  not  re- 
sponsive to  the  l)ill,  must,  when  in 
issue,  be  proved  by  tiie  .defend- 
ant   Ihid. 

21.  If  the  answer  admit  a  fact,  but 
rely  on  a  distinct  fact  in  avoidance, 
the  defendant  must  prove  the  fact 
on  which  he  relies Ibid. 

22.  The  assignee  of  a  debt — to  obtain 
ceiitain  securities  for  the  same, 
which  had  been  executed  by  the 
debtor  to  the  assignor's  attorney, 
and  assigned  by  the  attorney  to  a 

80) 


INDEX. 


491-402 


third  person— filrd  a  bill  in  chan- 
cery against  the  attorney  and  his 
assignee.  Held,  on  demurrer,  that 
the  complainant's  assignor  should 
have  been  made  a  party. —  Elderkin 

V.  Skultz  345 

23  If  a  person,  indebted  to  several 
others,  absent  himself  from  the 
state,  and  leave  real  estate,to  which 
he  is  entitled  in  equity,  but  no 
property  subject  to  legal  process  ; 
liie  creditors  may  unite  in  a  bill  in 
chancery  to  have  their  claims  liqui- 
dated, and  to  make  the  property 
liable  for  the  nmount— Kipper  el 
(d.  V.  Glancey  el  al 356 

24.  The  Court,  on  overruling  a  de- 
murrer to  a  bill  in  chancery,  should 
give  the  defendant  a  reasonable 
time  to  make  and  tile  his  answer. 

]bid. 

25.  A  bill  in  chancery  was  filed  in 
llie  Union  Circuit  Court,  to  revive 
a  decree  in  the  Franklin  Circuit 
Court  in  favor  of  the  complainant's 
ancestor,  respecting  land  situate,  at 
the  time  of  the  decree,  in  Franklin 
county.  When  the  bill  of  revivor 
was  filed,  the  land,  in  consequence 
of  a  change  of  county  boundaries, 
lav  in  Union  county.  Held,  that 
the  bill  of  revivor  should  have 
been  filed  in  the  Franklin  Circuit 
Court ;  the  Union  Circuit  Court 
having  no  jurisdiction  of  the  cause. 
— Arnold  ei  al.  v.  Styles  el  al 391 

26.  The  merits  of  the  decree  can  not 
be  disputed  by  an  answer  to  a  bill 
of  revivor • Ibid. 

27. — The  mode  of  objecting  to  an  an- 
swer as  insuflScient  is  not  by  de- 
murring, but  by  filing  exceptions. 
Ibid. 

28.  It  is  a  general  rule,  that  to  reach 
the  equitable  interest  of  a  debtor 
in  real  estate  by  a  suit  in  chancery, 
the  creditors  should  first  obtain  a 
judgment  at  law  ;  and  to  reach  per- 
sonal property,  both  a  judgment 
and  execution  must  be  shown.  One 
exceptiiiu  to  this  rule  is,  where  the 
debtor  is  deceased  ;  another  excep- 
tion is,  where  the  claim  is  to  be 
satisfied  out  of  a  fund  accessible 
only  by  the  aid  of  a  Court  of  chan- 
cery.—O'Brien  et  al.  V.  Couller  el 
al.. 421 

29.  If  a  (leii'.iirrer  to  a  bill  for  want 
of  proper  parties  be  sustained,  the 
bill  shoiild  not  be  dismissed  ;  but 
the  cause  be  ordered  to  stand  over 


for  a  reasonable  time,  with  leave  to 
amend  the  hiW.—Lijidley  v.  Cra- 
vens   4_6 

30.  A  bill  in  chancery,  when  denied 
by  the  answer,  must  be  proved  by 
at  least  two  witnesses,  or  by  one 
witness  and  corroborating  circum- 
stances, or  the  complainant  can  not 
succeed.— Je/a'.80M  et  al  v.  Grates  et 
al 440 

31.  If  an  execution-defendant  have 
goods  subject  to  the  execution,  and 
they  be  fraudulently  placed  by  a 
third  person  out  of  the  reach  of  the 
execution,  such  third  person  may 
be  compelled  by  the  execution- 
plaintiff,  in  a  Court  of  chancery,  to 
account  for  the  property Ibid. 

32.  A  judgment  by  default  having^ 
been  rendered  against  A.,  on  a  note 
previously  executed  by  him  to  B., 
the  former  filed  a  bill  in  chancery 
to  enjoin  the  judgment— stating  the 
note  to  have  been  given,  and  the 
judgment  rendered,  on  a  certain 
condition  which  had  not  been  com- 
plied with.  The  answer,  which 
was  supported  by  the  depositions, 
denied  the  complainant's  allega- 
tions. The  Court  dismissed  the 
bill. — Raburn  v.  Shortridge 480 

33.  The  want  or  failure  of  considera- 
tion is  a  gc  od  defence  to  an  action 
at  law  on  a  note;  but  if  the  defend- 
ant neglects  to  make  this  defence, 
and  suffers  judgment  by  default, 
he  can  not,  without  a  strong  case, 
be  relieved  in  chancery Ibid. 

CIRCUIT  COURT. 

See  Jurisdiction,  3,  4;  Justice  of 

THE  Peace,  2. 

COMMISSION  MERCHANTS. 

1.  The  usages  of  commerce  regulate 
the  duties  and  privileges  of  com- 
mission merchants,  and  generally 
form  their  contracts  in  business ; 
which  usages  are  matters  of  fact 
and  susceptible  of  proof. — Rapp  v. 
Grayson 130 

2.  It  is  as  much  the  duty  of  a  com- 
mission merchant  to  obey  instruc- 
tions, with  regard  to  the  shipping 
of  goods  deposited  with  him  to  be 
shipped,  as  it  is  to  keep  them  safe- 
ly while  in  his  care.  This  duty  de- 
volves on  all  who  are  acting  for 
him  as  clerks  or  agents;  and,  while 
they  are  recognized    as   acting  for 


(.581^ 


492-493 


INDEX. 


him,  their  authority  must  be  pre- 
sumed to  be  co-extensive  with  his, 
as  to  the  business  he  is  thus  trans- 
acting by  them Jbid. 

3.  G.  deposited  goods  in  the  ware- 
house of  R.,  a  commission  mer- 
chant, and  R.  agreed  to  ship  the 
goods  to  a  certain  place  i)y  a  good 
boat,  but  not  with  W.  and  his  boat. 
R.,  afterwards,  shipped  the  goods 
with  W.  and  in  his  boat.  Held,  in 
case  the  goods  were  lost — tirst,  that 
R.  was  liable  to  G.  for  the  damages 
sustained  by  the  loss,  and  that  he 
would  have  been  so  liable  had  he 
merely  contracted  for  the  safe-keep- 
ing of  the  goods;  secondly,  that 
even  if  R.  were  not  bound,  in  law, 
to  obey  the  instructions  given  him 
as  to  the  shipping  of  the  goods,  he 
would  still  be  subject  to  the  action 
of  G.  for  delivering  the  goods  to 
W.  contrary  to  those  instructions  ; 
thirdly,  that  though  G.  might  have 
have  recovered  against  W.,  and  the 
recovery  would  have  barred  a  sub-' 
sequent  suit  against  R,  yet  G.  was 
not  bound  to  resort  to  W.  But  it 
was  also  held,  that  the  action  by  G. 
against  R.  could  not  be  sustained 
without  proof  of  the  loss  of  the 
goods Ibid. 

COMPANY,  UNINCORPORATED. 

The  members  of  an  unincorporated 
company  assumed  the  name  of 
"The  Aurora  Association  for  In- 
ternal Improvement;"  and  in  that 
name,  by  their  agent,  executed  a 
title-bond  for  a  lot  in  the  town  of 
Aurora.  Held,  that  the  bond  was 
not  obligatory  on  the  members  of 
the  company,  and  was  consequent- 
ly not  a  valid  consideration  for  a 
note  given  for  the  price  of  the  lot. 
—  Vuitier  v.  Roberta    255 

CONDITION  PRECEDENT. 
\  1.  In  an  action  on  a  contract  in  which 
something  is  to  be  done  by  the 
plaintitf,  on  condition  of  which  the 
defendant  undertakes  to  ])ay,  the 
plaintill'  in  his  declaration  must 
aver  a  })erformance  or  a  readiness 
to  perform  on  his  part.  But  the 
want  of  such  an  averment  must  be 
taken  advantage  of  by  demurrer; 
or,  if  the  judgment  be  by  default, 
by  motion  in  arrest. — Justice  v.  The 
Board  ofJiiiitices  of  Vermillion  Gowity. 

149 


2.  The  plaintiff,  in  such  an  action, 
can  not  be  obliged  to  prove  per- 
formance of  his  part  of  the  con- 
tract before  he  has  proved  the 
existence  of  the  contract  itself. 

Ibid. 

3.  In  the  case  of  a  special  contract, 
one  party  can  not,  by  a  part  per- 
formance only  of  his  part,  sue  for 
and  recover,  in  indebitatus  assump- 
sit, for  the  part  he  has  performed. 
But  if  he  perform  a  part  of  what 
he  was  to  do,  and  be  prevented  from 
performing  the  residue  by  the  con- 
duct of  the  other  party,  he  may 
abandon  the  contract  and  recover 
for  what  he  has  done. — Hoagkmd  et 
al  V.  3Joore 167 

CONFUSION  OF  GOODS. 
It  is  a  rule,  both  at  law  and  in  equity, 
that  if  a  person  having  charge  of 
the  jiroperty  of  another,  so  con- 
founds it  with  his  own  that  it  can 
not  be  distinguished,  he  must  bear 
all  the  inconvenience  of  the  confu- 
sion ;  and,  if  it  be  a  case  of  dam- 
ages, the  damages  given  against 
him  will  be  to  the  utmost  value  of 
the  property. — Brackcnridge  v.  Hol- 
land ctal  377 

CONSIDERATION. 
See  Chancery,  33 ;  Company,  Un- 
incorporated; Covenant,  7;  Ex- 
ecutors AND  Adminlstrators,  4 ; 
Pleading,  14  ;  Promissory'  Notes, 
4  ;  Vendor  and  Purchaser,  3,  21. 

CONSTABLE. 

See  Execution,  2. 

1,  Although  in  a  justice's  warrant  for 
the  apprehension  of  an  oflender, 
the  time  when  the  ofi'ence  is  alleged 
to  have  been  committed  be  subse- 
quent to  the  date  of  the  warrant, 
the  constable  is  justifiable  in  exe- 
cuting it. —  Faiterswi  v.  Kise  et  al. 

127 

2.  If  the  defendant,  in  pleading  a 
warrant  in  justification  of  an  ar 
rest,  aver  that  he  was  an  acting 
deputized  constable  of  the  county," 
tlie  word  deputized  may  be  consid- 
ered as  surplusage;  and  the  jilea 
will  be  good,  though  it  do  not  set 
out  the  defendant's  appoint inenl, 
nor  allege  tliat  the  warrant  was 
shown  to  the  plaintifi',  nor  that  it 
was  returned Ibid. 


(582) 


IKDEX. 


493 


S.  Though  two  offences  against  the 
party  be  charged  in  the  warrant, 
yet,  if  the  justice  has  jurisdiction 
over  both,  the  constable  is  bound 
to  execute  it Ibid. 

4.  A  person  acting  as  a  special  con- 
stable to  execute  a  warrant,  is  au- 
thorized to  command  assistance  in 
case  of  opposition Ibid. 

CONSTITUTIONAL  LAW. 

See  Divorce,  2  ;  Insolvent  Laws  ; 
Effect  of  Discharges  Under,  3, 
4 ;  Judgment,  2-5 ;  Justice  of 
the  Peace,  2 ;  Militia  Fines  ; 
Slander,  1 ;  Statute,  1. 

CONSTRUCTION  OF  vSTATUTES. 

See  Statute,  5. 

CONTEMPT. 

See  Chancery,  8,  9  ;  Trespass,  4. 

CONTINUANCE. 
See  Amendment. 

1.  If  the  continuance  of  a  cause  be 
applied  for,  on  the  ground  that  a 
witness  who  had  been  subpoenaed 
does  not  attend,  the  return  of  the 
sheriff  must  be  produced. —  Gordon 
V.  Spencer 286 

2.  An  affidavit  for  a  continuance,  on 
account  of  the  absence  of  witnesses, 
must  clearly  show  their  materiality. 

Ibid 
CONTRACT. 

See  Condition  Precedent  ;  Vendor 
AND  Purchaser,  13. 

A  person  entered  into  possession  of 
real  estate  under  a  parol  contract, 
by  which  the  iessee  was  to  have  a 
written  lease  for  the  premises  for 
7  years,  and  was  to  make  certain 
improvements  thereon.  After  a 
part  of  the  work  had  been  done,  and 
long  before  the  expiration  of  the 
term,  the  lessor  refused  to  execute 
the  lease,  and  obliged  the  lessee  to 
•quit  the  premises.  Held,  that  the 
lessor,  having  rescinded  the  special 
contract,  was  liable  to  the  lessee, 
in  indebitatus  assumpsit,  for  the 
work  performed.-.4/for;)  v.  Harmon- 
son  235 

CONVEYANCE. 
See  Fraudulent  Conveyance"; 
Vendor  and  Purchaser,  9, 14,  24 
-27,  30 ;  Witness,  4. 

(58 


If  a  conveyance  of  real  estate  appears 
on  its  face  to  have  been  regularly 
executed,  and  its  execution  is  at- 
tested by  subscribing  witnesses,  it  is 
admissible  in  evidence  without  a 
certificate  of  acknowledgement ;  nn 
acknowledgement  being  essential  to 
the  admission  of  a  deed  to  record, 
but  not  to  its  validity.— Doe  d. 
Wayman  v.  Naylor 32 

CORPORATION. 
See  Bank   of    Indiana,   Farmers 
and  Mechanics'  Company,  Unin- 
corporated. 

1.  A  plea  in  abatement  to  an  action 
by  a  corporation,  that  the  charter 
is  forfeited  inconsequence  of  a  mis- 
user or  non-user  of  the  franchises, 
can  not  be  good  ;  unless  it  show 
the  forfeiture  to  have  been  judici- 
ally declared  at  the  instance  of  the 
government. — John  et  ul.  v.  The  Far- 
mers and  Mechanics^  Bank  of  In- 
diana  367 

2.  If  a  promissory  note  be  given  to  a 
company  as  a  corporation,  the  ma- 
ker is  estopped  from  contending 
that,  at  the  date  of  the  note,  the 
company    was   not   a   corparation. 

Ibid. 

COSTS. 

See   Bond,    10,    11;   Chancery,   2  ; 

Ejecment,  5  ;  Replevin,  4. 

1.  The  defendant  in  replevin  avowed 
the  taking  of  the  goods,  by  virtue 
of  his  office  as  sheriff,  on  an  execu- 
tion against  a  third  person  to  whom 
they  belonged.  The  plaintiff  plead- 
ed property  in  himself.  The  jury 
found  that  some  of  the  goods  were 
the  plaintiff's,  and  that  some  were 
not  his.  Judgment  on  the  verdict, 
and  that  each  party  should  recover 
his  costs.  Held,  that,  as  each  party 
had  succeeded,  each  was  entitled 
to  costs;  and  that  the  judgment 
was  right.  —  Chinn  v.  Russell 171 

2.  If  the  jury  find  a  defendant  in  an 
indictment  guilty  and  assess  the 
fine,  but  acquit  him  as  to  costs,  no 
judgment  for  costs  can  be  rendered 
against  him. —  The  State  v.  Racklei/. 

249 

3.  Neither  the  state,  nor  a  county,  is 
bound  by  law  to  pay  the  fees  and 
charges  of  the  officers,  in  cases  of 
prosecutions  on  liehnlf  of  tlie  st:.tf, 
in  wiiich  the  pro-ecution  fails. — 
Eaii'ley  v.  The  Board  of  Commii'Mon- 

3) 


4-93-494 


INDEX. 


ers  of  Vigo  County 355 

4.  A.  brought  an  action  against  B., 
before  a  justice  of  the  peace,  for  77 
dollars,  and  obtained  a  judgment 
for  5  dollars  and  his  costs.  A.  ap- 
pealed to  the  Circuit  Court,  and 
obtained  a  judgment  for  the  same 
amount  with  costs.  Held,  that,  un- 
der the  statute  of  1827,  the  judg- 
ment in  the  Circuit  Court  for  costs 
was  not  erroneous. — Roberts  v.  Le- 
favour 358 

5.  The  costs  on  the  appeal  are  taxed, 
under  the  statute  of  1827,  in  such 
a  manner  as  the  Court  thinks 
proper Ibid. 

COUNTY. 

See  Costs,  3. 

COUNTY  COMMISSIONERS. 
See  Parties,  1,  2. 

COUNTY  SEMINARIES. 
See  Militia  Fines,  2. 

COURT. 
See  Jury,  7. 

1.  The  Court  can  not  give  an  unquali- 
fied charge  to  the  jury,  that  the 
evidence  is  insufficient  to  support 
the  action,  unless  in  cases  where  it 
would  be  bound  to  set  aside  the 
verdict  if  for  the  plaintiff. — The 
Governor  v.  Shelby   26 

2.  The  refusal  of  the  Court  to  give 
instructions  to  the  jury,  which  are 
good  law  but  not  applicable  to  the 
case,  can  not  be  assigned  for  error. 
— Rapp  v.  Grayson 130 

3.  Wheiher  evidence  be  competent 
or  not  is  always  a  question  for  the 
decision  of  the  Court. — Toivnsendv. 
The  Stole 151 

COVENANT. 

See  Former  Recovery,  2,  4 ;  Re- 
lease; Vendor  AND  Purchaser, 
14,  18-20. 

1 .  If  the  breach  of  contract,  for  which 
an  action  of  covenant  is  brought, 
was  accompanied  with  fraud,  the 
fraud  is  a  proper  subject  of  inquiry 
in  that  action,  and  may  be  special- 
ly averred  in  the  declaration. —  CiU- 
ler  V.  Cox... 178 

2.  A.,  being  tlie  owner   in   fee    of    a 


town,  leased  one  of  the  houses  to 
B.  for  a  term  of  years,  and  cove- 
nanted in  the  lease  that  B.  should 
have  the  exclusive  privilege  of 
vending  merchandise  in  the  town 
during  the  term.  Soon  after  the 
commencement  of  that  term,  A. 
leased  another  house  in  the  town 
to  C.  for  a  term  of  years,  without 
any  restriction  as  to  the  vending  of 
merchandise  there  ;  C.  under-let  a 
part  of  this  house  to  D.  without 
restriction  ;  and  D.  commenced  the 
sale  of  merchandise  on  the  prem- 
ises so  leased  to  him.  D.,  before 
the  date  of  his  lease,  had  notice  of 
A.'s  covenant  with  B.,  and  C.  had 
notice  of  the  same  before  D.'s  sale 
had  commenced.  Held,  that  D.  was 
not,  under  these  circumstances,  pro- 
hibited from  vending  merchandise 
in  the  part  of  the  house  which  had 
been  leased  to  him  by  C. —  Taylor 
V.  Owen  et  at ...301 

3.  Such  covenants  as  that  above  men- 
tioned, of  A.  with  B.,  are  merely 
of  a  personal  nature.  They  neither 
run  with  the  land  of  the  covenant- 
or, nor  create  any  lien  thereon, 
either  legal  or  equitable Ibid. 

4.  A  bona  fide  vendee  or  lessee  of  real 
estate  is  not  afiected  by  such  a  per- 
sonal covenant ;  and  the  circum- 
stances of  his  having  had  notice  of 
it  makes  no  difference Ibid. 

5.  A.,  by  his  unrestricted  lease  to  C, 
above  mentioned,  broke  his  cove- 
nant with  B. ;  and  he  is  liable  for 
the  breach  to  B.,  if  the  covenant  be 
valid,  in  an  action  at  law Ibid. 

6.  Same  points  decided  as  in  the  last- 
named  case. —  Taylor  v.  Moffatt  et 
ul ■ 304 

7.  The  consideration  of  a  title-bond 
was — the  obligee's  agreement  to 
convey  certain  land  to  the  obligor, 
on  the  same  day  on  which  the  con- 
veyance mentioned  in  thetitle-bond 
was  to  be  executed,  and  to  pay  the 
obligor  two  promissory  nx)tes  be- 
fore that  day,  one  in  money  and 
the  other  in  personal  property. 
Held,  that  the  covenants  were  de- 
pendent ;  and  that  the  obligee's  not 
conveying  nor  offering  to  convey 
the  land,  the  conveyance  of  which 
was  the  main  part  of  the  consider- 
ation of  the  title-bind,  was  a  bar 
to  his  recovery  on  that  bond. — 
Pence  et  al.  v.  Smock 315. 


(584) 


INDEX. 


494-495 


D 


DAMAGES. 
See  Bond,  6,  9 ;  Demurrer  to  Evi- 
dence,  3 ;    Seat  of  Justice,  3 ; 
Trover,  1  ;    Vendor  and  Pur- 
chaser, 20. 

1.  If  the  sum  to  which  the  plaintiff 
is  entitled  depend  on  the  amount 
due  on  a  judgment,  the  Court  can 
assess  the  damages,  after  judgment 
for  the  plaintifiion  demurrer,  with- 
out a  jury  ;  and  so  wherever  there 
are  records  or  other  undisputed 
documents  to  determine  the  amount 
due. — Harrington  \ .  Witherow  37 

2.  On  a  covenant  to  convey  real  es- 
tate, as  on  a  covenant  of  seisin,  the 
measure  of  damages  is,  in  the  ab- 
sence of  fraud,  the  purchase-money 
and  interest.  —  BlackweU  v.  The 
Board  of  Justices  of  Lawrence  County. 

143 

3.  Qucere,  whether  on  the  covenant  of 
warranty,  the  value  of  the  land  at 
the  time  of  eviction,  or  the  pur- 
chase-money with  interest,  is  the 
measure  of  damages  Ihid. 

4.  Debt  on  a  bond,  and  judgment  by 
default.  The  plaintiff  suggested 
that  the  bond  was  conditioned  for 
the  delivery  of  property  taken  on 
execution,  and  assigned  as  a  breach 
that    the    condition   was    broken. 

•  Judgment,  without  a  jury,  for  the 
amount  of  the  execution.  Hdd, 
that  supposing  the  a«;ignment  of 
the  breach  to  be  only  informal,  and 
the  want  of  a  judgment  for  the  pen- 
alty to  be  unavailing  in  error,  yet 
the  breach  should  have  been  found, 
and    the   damages    assessed,  by    a 

\\\r\.— Perkins  et  ul.  v.  Smith 171 

5.  Debt  on  a  bond  for  the  delivery  of 
goods,  taken  on  an  execution  which 
had  issued  igainst  a  judgment- 
debtor  and  his  replevin-surety. 
Judgment,  on  demurrer,  for  the 
plaintiff.  Held,  tliat  the  measure 
of  damages,  if  they  did  not  exceed 
the  jienalty  of  the  bond,  was  the 
amount  due  on  the  original  judg- 
ment, with  interest  and  costs ;  but 
that  the  assessment  could  not  ex- 
reed   the   penalty.— J/'Co(/  et  al.  v. 

FJdei  ". 183 

6.  Debt  on  an  attachment-bond.  The 
condition  of  the  bond  was  set  out 
in  tlie  declaration.  Held,  that,  on 
ihe  assessment  of  damages,  the  de- 
murrer being  overruled,  evidence 


of  the  plaintiff's  having  paid  a  fee 
to  an  attorney,  in  the  attachment- 
suit,  was  admissible. — Morris  et  al. 

V.  Price 457 

7.  Held,  also,  that  on  overruling  the 
demurrer  in  such  case,  final  judg- 
ment should  be  stayed  until  the 
truth  of  the  breaches  assigned  are 
inquired  into  and  the  damages  as- 
sessed ;  and  that,  after  such  assess- 
ment, final  JAidgment  should  be 
rendered  for  the  debt  in  the  declar- 
ation mentioned  with  costs,  and 
execution  awarded  for  the  damages 
assessed  with  costs Ibid. 


DAYS  OF  GKACE. 

See  Bank  of  Indiana,  Farmers  and 

Mechanics'. 

DEBT. 
See  Decree. 

1.  The  general  doctrine  is,  that  an 
action  of  debt  can  not  be  sustained 
on  a  decree  in  chancery. — Elliott  et 
al  V.  Ray  -.31 

2.  An  action  of  debt  will  not  lie  on 
the  decree  of  a  Court  of  chancery 
in  another  state,  unless  the  decree 
have,  by  the  statute  of  that  state, 
the  force  and  effect  of  a  judgment 
at  law Ihid. 

3.  If  the  decree  have  such  effect  by 
statute,  that  fact  should  be  averred 
and  proved;  the  statutes  of  other 
states  not  being  noticed  here  with- 
out proof Ibid. 

DEED. 

See  Conveyance. 

DELIVERY-BOND. 
See  Bond,  2,  3,  6  ;  Damages,  4,  5. 

DEMAND. 
See  Bond,  2 ;  Disseisin,  4  ;  Sheriff, 
r,  8  •  Vendor  and  Purchaser,  4, 

7,  8,  18. 

DEMAND,  ST.\TEMENT  OF. 

See  Justice  of  the  Peace,  5. 

DEMURRER. 

See  Pleading,  2. 

The  defendant,  on  a  demurrer  to  his 

plea,  obtained  a  judgment,  v.ithout 

having  joined  in  demurrer.     HeUh 

that  the  plaintill  could   not  assign 


(5851 


495-496 


INDEX. 


the  want  of  the  joinder  for  error. — 
Harris  v.  M'Faddin 71 

DEMURRER  TO  EVIDENCE. 

1.  A  party  does  not,  by  cross  exam- 
ining his  opponent's  witness,  pre- 
clude himself  from  the  ri^lit  of 
demurring  to  the  evidence.  — 
31'Cieary  v.  Fike  374 

2.  If  a  demurrer  to  parol  evidence 
contain  all  the  evidence  given,  a 
joinder  in  demurrer  may  be  de- 
manded  , Ibid. 

3.  When  a  demurrer  to  evidence  is 
allowed,  the  jury  may  a.s.sess  the 
damages  conditionally;  or  they 
may  be  discharged  without  making 
such  an  assessment;  in  the  latter 
case,  should  the  demurrer  be  over- 
ruled, the  damages  may  be  assessed 
by  another  jury  on  a  writ  of  in- 
quiry  Ibid. 

4.  If,  from  the  testimony  set  out  in  a 
demurrer  to  the  plaintiff's  evi- 
dence, the  jury  might  have  infer- 
red that  the  action  should  be  sus- 
tained, the  plaintiff  is  entitled  to  a 
judgment  in  his  favor Ibid. 

DEVASTAVIT. 

See    Executors   and   Administra- 
tors, 1,  16,  17. 

DEVISE. 
See  Will. 

DILIGENCE. 

See  Bond,  4  ;   Pleading,  3  ;   Prom- 
issory Notes,  3. 

DISSEISIN. 

1.  A.  died  in  jrossession  of  a  tract  of 
land,  which  he  held  by  virtue  of  a 
title-bond  executed  by  C.  The 
widow  of  A.  remained  in  posses- 
sion and  married  B.,  who  also  con- 
tinued in  possession.  C,  having 
the  legal  title,  brought  an  action 
of  disseisin  for  the  premises  against 
B.  without  having  previously  de- 
manded the  possession. 

Held,  that  though  the  statute  gives  to 
the  widow  of  A.  a  right  of  dower 
in  the  equitable  estate,  her  claim 
constituted  no  defence  in  law  to 
tlic  action  of  disseisin  brought  by 
C.—  Tai/lor  V.  M ' Crdc/cin  .........260 

2.  Held,  2d,  that  tiie  statutory  provi- 
sion— authorizing  the  widow  to  con- 
tinue in  possession  of  the  mansion- 


house,  and  the  messuage  thereto 
belonging,  until  her  dower  is  as- 
signed— applies  only  to  the  persons 
claiming  under  her  decea.sed  hus- 
band, and  not  to  those  claiming  by 
an  adverse  title Ibid. 

3.  Held,  3d,  that  though  a  judgment, 
in  the  action  of  disseisin,  settles 
the  titles  held  by  the  parties  at  the 
time  of  its  rendition,  it  does  not 
prevent  the  losing  party  from  en- 
forcing a  superior  title  suljsequent- 
ly  acquired,  nor  preclude  either  of 
the  parties  from  applying  to  a 
Court  of  chancery  to  perfect  his 
title,  or  to  enjoin  a  judgment  ob- 
tained contrary  to  equity Ibid. 

4.  Held,  4th,  that  C.  could  not  sus- 
tain his  action  of  disseisin  against 
B.,  under  the  circumstances  of  this 
case,  without  having  previously  de- 
manded of  him  the  possession  of 
the  prera ises Ibid. 

DISTRESS. 
See  Replevin,  4,  5,  7,  9. 

1.  The  warrant  of  a  justice  of  the 
peace,  issued  under  the  statute  of 
1824,  commanding  the  constable 
to  distrain  for  rent,  is  a  justifica- 
tion to  the  officer  in  an  action  of 
replevin  by  the  tenant,  independ- 
ently of  the  landlord's  claim. — 
Harris  \.  M'Faddin 71 

2.  If  the  constable  justify  under  his 
warrant,  and  obtain  judgment  on 
a  demurrer  to  his  plea,  he  is  en- 
titled to  a  return  of  the  goods..Ibid. 

3.  If  the  tenant  wish  to  contest  the 
landlord's  right  to  distrain — to 
rely,  for  example,  on  non  tenuit  or 
riens  in  arrear — he  should  institute 
his  suit  against  the  landlord... Ibid. 

DIVORCE. 

See  Alimony  ;  Fraudulent  Con- 
veyance, 3 ;  Vendor  and  Pur- 
chaser, 24. 

1.  Petition  by  a  wife  for  a  divorce. 
The  marriage  was  solemniized  in 
Kentucky,  where  tlie  parties  then 
resided.  The  husband  there,  in 
1822  or  1823,  deserted  his  wife,  and 
has  ever  since  lived  in  adultery 
with  another  woman.  Two  or  three 
years  after  the  desertion,  the  wife 
removed  to  this  slate,  where  she 
has  since  tliat  time  resided.  T!ie 
husband  was  never  resident  here  ; 
and   the  notice  to  him  of  the  pen- 


(5S6) 


IXDEX. 


498 


dency  of  this  suit  was  by  publica- 
tion. Held,  that  the  Circuit  Court, 
under  the  statute,  has  jurisdiction 
of  the  cause. —  Tolen  v.  Tolen 407 

2.  Tlie  constitutional  provision,  pro- 
hibiting laws  impairing  the  obli- 
gation of  contracts,  does  not  ex- 
tend to  general  laAvs  authorizing 
divorces;  provided  the  legislature, 
in  the  exercise  of  its  power,  does 
not  pass  beyond  the  rights  of  its 
own  citizens,  and  act  upon  the 
rights  of  the  citizens  of  other  states. 

Ibid. 

3.  In  a  suit  for  a  divorce,  the  lex 
domicilii  is  the  rule  of  decision.. 76!c/. 

DOWER. 
See  Disseisin,  1,  2,  4. 

1.  After  the  alienation  of  real  estate, 
and  before  the  death  of  the  grantor, 
the  value  of  the  estate  was  greatly 
enhanced  by  improvements  made 
by  the  grantee.  Held,  that  the 
dower  of  the  grantor's  widow  should 
be  assigned  according  to  the  value 
of  the  property  at  the  time  of  the 
alienation. —  Wilson  v.  Oatman-  223 

2.  A  title-bond,  conditioned  for  the 
conveyance  of  real  estate  on  pay- 
ment of  the  purchase-money,  was 
executed,  and  possession  at  the 
same  time  given  to  the  obligee. 
The  purchase-money  was  after- 
wards paid,  and  a  title  obtained  by 

the  purchaser.  Held,  that  the  date 
of  the  bond  must  be  considered  the 
period  of  alienation,  in  estimating 
the  value  of  the  property  with  a 
view  to  the  dower  of  the  obligor's 
widow Ihid. 

DUPLICITY. 
See  Pleading,  4,  8,  20,  21. 

E 
E.JECTMENT. 

1.  If  a  defendant  in  ejectment  have 
a  legal  title  to  the  premises,  and 
neglect  to  produce  it  in  that  action, 
he  can  not,  after  a  verdict  against 
him,  obtain  an  injunction  of  the 
proceedings  at  law,  by  a  bill  in 
chancery  founded  on  the  same  title. 
— Broun  v.  Wyucoop 230 

2.  The  question,  whether  a  deed  be 
fraudulent  and  void  as  to  creditors, 
may  be  examined  and  decided  in 
an  action  of  ejectment Ibid. 

3.  An  infant,  having  a   title  to  land 


for  which  an  action  of  ejectment  is 
brought,  has  a  right  to  be  admitted 
a  defendant  on  the  usual  terms ; 
and  the  Court  should  appoint  a 
guardian  for  him,  in  order  that  he 
may  be  enabled  to  defend  the  suit. 
—  Glass  V.  Doe  d.  Murphy 293 

4.  A  person  claiming,  by  virtue  of  a 
title-bond  only,  the  premises  for 
which  an  action  of  ejectment  was 
brotight,  applied  to  be  made  a  de- 
fendant in  the  cau.se.  Held,  that, 
as  the  claim  was  merely  of  an  equi- 
table nature,  the  application  could 
not  be  granted. — Bench  v.  Doe  d. 
Webster .30'J 

5.  If,  in  ejectment,  there  be  a  verdict 
and  judgment  for  the  defendant, 
the  judgment  for  costs  must  be  en- 
tered against  the  nominal  plaintiff, 
and  not  against  the  lessor. — Doe  d. 
Brown  el  al.v.  Owen 452 

6.  But  a  judgment  in  such  case, 
against  the  lessor,  being  defective 
only  in  form,  may  be  amended  nu 
motion  in  the  Court  below.  Even 
after  the  cause  is  removed  by  writ 
of  error,  the  proceedings  in  the  Su- 
preme Court  will  be  stayed,  on  mo- 
tion, till  the  amendment  can  be 
made ;  and,  after  the  amendment, 
a  new  transcript  may  be  obtained, 
on  suggestion  of  diminution,  and 
the  judgment  affirmed Ibid. 

ERASURE. 
See  Chancery,  11. 

ERROR. 

See  Demurrer  ;  Inquiry,  Writ  of, 
2;  Jury,  3,  13;  Oyer,  3;  Plead- 
ing, 16,  17  ;  Similiter. 

1.  The  record  showed  that  a  suit  had 
been  commenced  in  the  Orange  Cir- 
cuit Court,  and  that  a  declaratiou 
and  ))!ea  had  been  therein  filed ; 
that  the  declaration  and  plea,  with 
an  affidavit  for  a  change  of  venue, 
were  afterwards  on  file  in  the 
Washington  Circuit  Court;  that 
the  cause  was  tried,  and  a  verdict 
rendered  for  the  plaintiff,  a  new 
trial  granted  on  the  defendant's 
motion,  a  second  verdict  and  final 
judgment  rendered  for  the  iilaintifi', 
in  the  last-named  Court.  Held,  that 
the  circumstance  of  the  record's 
not  showing  an  order  for  a  change 
of  venue,  could  not  be  assigned  for 
error,    no    objection    having    been 


(587) 


496-497 


INDEX. 


made  below  to  the  jurisdiction  of 
the  Washington  Circuit  Court. — 
Bosky  V.  Farquar  et  al 61 

2.  If  the  evidence,  relative  to  the 
merits  of  the  action,  be  contradic- 
tory, and  the  jury  have  any  grounds 
for  their  verdict  in  favor  of  the 
plaintif!',  a  court  of  errors  will  not 
reverse  a  judgment  on  the  verdict, 
because  a  new  trial  had  been  re- 
fused. Aliter,  if  there  was  no  evi- 
dence of  a  fact  essential  to  the  sup- 
port of  the  action. — Rapp  v.  Gray- 
son    130 

3.  A  judgment  will  not  be  reversed 
because  a  motion  for  a  new  trial, 
made  on  the  ground  of  the  verdict's 
being  contrary  to  evidence,  has 
been  overruled  ;  unless  it  be  clear 
that  the  verdict  is  not  warranted 
bv  the  evidence. —  Lamherl  v.  San- 
ford 137 

4.  A  judgment  against  a  defendant, 
in  a  criminal  cause,  will  not  be  re- 
versed because  the  record  does  not 
show  that  the  indictment  was  en- 
dorsed, "a  true  bill,"  by  the  fore- 
man of  the  grand  jury. — Towmend 
V.  The  Slate " 151 

5.  If  any  of  the  evidence,  which  is 
contradictory,  conduce  to  prove  the 
plaintiflf's  case,  and  he  obtain  a 
verdict,  the  refusal  to  grant  to  the 
defendant  a  new  trial,  on  account 
of  the  insufliciency  of  the  evidence, 
will  not,  except  in  extreme  cases, 
be  available  in  error.  And  where 
a  new  trial  is  applied  for  on  ac- 
count of  excessive  damages,  and 
refused,  the  damages  must  be  out- 
rageously excessive,  or  a  Court  of 
error  will  not  interfere. — Hoagkind 
et  al.  V.  Moore 167 

6.  It  is  always  presumed  by  the  Su- 
preme Court,  that  all  the  evidence 
necessary  to  sustain  the  verdict 
was  given  to  the  jury, unless  the  con- 
trary be  shown  by  the  record. — 
Cooper  V.  Adamseial 294 

7.  If  the  facts  relied  on  to  reverse  a 
judgment  be  not  shown  by  the  rec- 
ord, and  the  judgment  would  be 
authorized  by  any  facts  which 
might  have  been  legally  before  the 
Court,  the  judgment  must  be  af- 
firmed.— Bliiney  v.  Findknj  rt  a/.338 

8.  After  a  cause  had  been  continued, 
the  parties  appeared  during  the 
same  term  and  proceeded  to  trial. 
This  was  held  not  to  be  erroneous. 
Tlie    proceeding    to    trial,    which 


must  be  presumed  to  have  been  by 
consent,  cancelled  the  previous 
order  of  continuance. —  Wilson  v. 
Coles 402 

9.  If  a  motion  fur  a  new  trial,  made 
on  the  ground  that  the  verdict  is 
unsupported  liy  the  evidence,  be 
overruled,  and  the  opinion  be  e.x- 
cejJted  to — the  bill  of  exceptions 
must  show  that  it  contains  all  the 
evidence  given  in  the  cau.se.- Lu;7o»i 
v.  Carson 464 

10.  If  the  evidence  be  contradictory, 
and  there  be  ground  for  an  honest 
difference  of  opinion  as  to  the  pro- 
priety of  the  verdict,  the  refusal  to 
grant  a  new  trial  is  not  error- Tbid. 

ESCAPE. 

1.  A  ca.sa.  on  a  replevin-bond  in  the 
Supreme  Court  was,  by  the  sheriff 
thereof  to  whom  it  wa,s  directed, 
sent  to  the  sheriff' of  Jackson  coun- 
ty, where  the  execution-defendant 
resided.  The  sherifiof  that  county 
arrested  the  defendant,  and  after- 
wards suffered  him  to  escape.  Held, 
that,  under  the  statute,  the  sheriff 
of  the  Supreme  Court  was  not  liable 
for  the  escape. — M'Gruder  v.  Rus- 
sell   18 

2.  The  sheriff*  of  Jackson  county, 
after  the  escape,  retook  the  defend- 
ant in  that  county,  and  brought 
him  to  the  seat  of  government, 
where  the  Supreme  Court  sits. 
Held,  that  the  removal  of  the  de- 
fendant out  of  the  county  in  which 
he    was   arrested    was    an    escape. 

Ibid. 

3.  A  capias  ad  respondendum  was 
issued  against  Taylor  &  Scarles 
requiring  bail.  Upon  this  writ  the 
sheriff  arrested  David  S.  Taylor, 
but  took  no  bail  and  permitted  him 
to  escape.  Held,  that  the  sheriff 
committed  no  breach  of  duty  in 
this  discharge  of  Taylor,  altliougli 
the  person  intended  liy  tlie  name 
of  Taylor  in  the  writ  was  David  S. 

.  Taylor. —  The  Governor  v.  Stribling 
et  al '. 24 

ESTOPPEL. 
See   Corporation,  2 ;   Former    Re- 
covery, 5. 

EVIDEXCE. 

See  Bond.  3,  5.  8  :  Chancery,  11-21, 
3U;  Conveyance;  Court,  3;  De- 


(588) 


INDEX. 


497-498 


murrer  to  evidence  ;  former 
Recovery,  5;  Fraudulent  Con- 
veyance, 2  ;  Justice  of  the 
Pkace,  4,  7 ;  Malicious  Prosecu- 
tion, 2-4 ;  Marriage  ;  Partner- 
ship, 4,  6-8  ;  Pli:ai>[ng,  14;  Sher- 
iff, 3  ;  Slander,  4,6;  Surety,  2, 
3;  Trust  and  Trustee,  1-3,  7,8, 
11:  VEXDon  and  Purchaser,  9, 
23,  28,  31 ;  Witness. 

1.  The  answer  of  one  defendant  in 
chancery  is  no  evidence  against  his 
co-defendant. —  Thomasiion  v.  Tuck- 
er's A  dminist7'al(yrs 172 

2.  Held,  that  an  entry  in  the  partner- 
ship books,  by  one  of  the  partners 
in  the  business  of  a  saw-mill, 
cliarging  himself  with  a  boat  wliich 
he  liad  bnilt  at  the  mill — might  be 
introduced  by  him  as  evidence, 
inter  aU'i,  to  prove  the  boat  to  be 
his  individual  property. — Reno  v. 
Crane  217 

3.  A.  entered  into  partnership  with 

B.  in  the  husine  s  of  tanning  ;  and 

C.  bound  iiimself  in  a  covenant  to 
B.  for  A.'s  conduct  as  a  partner  for 
a  certain  time.  Held,  that  in  an  act- 
ion by  B.  against  C.  on  the  cove- 
nant, the  admissions  of  A.,  made 
after  the  expiration  of  the  stipu- 
lated time,  were  not  admissible  as 
evidence  against  C. — Hotchkiss  v. 
Lyon  el  al  222 

4.  It  is  a  general  rule,  that  the  best 
evidence  must  be  given  of  whicli 
the  nature  of  the  case  is  capable. — 
Jackson  d.  Taylor  v.  Culhim 228 

5.  If  any  instrument  of  writing,  or 
even  the  record  of  a  judgment,  be 
lost  or  destroyed,  the  contents  may 
be  proved  by  parol  evidence.. /6k/. 

^.  K.  and  D.  being  partners  in  a 
mill  which  they  iiad  built,  entered 
into  a  written  agreement,  stating, 
inter  alia,  that  D.  had  bought  K.'s 
interest  in  the  mill  for  500  dollars, 
to  be  paid  in  certain  installments. 
K.,  in  an  action  against  D.  for  the 
purchase-money,  was  permitted  to 
show  l)y  pan)l  evidence,  that  the 
sum  of  500  dollars,  which  D.  was 
to  pay  K.  for  his  interest  in  the 
mill,  was  exclusive  of  the  expenses 
that  had  been  incurred  in  build- 
ing it ;  and  that  those  expenses 
were  to  be  paid  by  D. — Kelse.y  v. 
Dickson 236 

7.  D.  had  given  to  K.  a  receipt  as 
follows: '"Rec'd.  17th  Oct.  1821, 
of  J.  Kelsev,  250    dollars,  which, 


w-ith  100  dollars  formerly  rec'd., 
(as  per  rec't. given  Mr.  K.,)  I  am  to 
lay  out  for  him  in  Louisville,  in 
such  goods  as  will  suit  the  Terre 
Haute  market,  charging  him  cost 
and  carriage  ;  or,  should  this  mode 
of  settlement  not  be  desired,  I  am 
to  pay  the  amount  in  specie,  add- 
ing a  [)ren)ium  of  two  per  cent. — 
say  in  all  357  dollars,  with  interest 
from  date  until  paid — Francis 
Dickson,  Jun."  In  an  action  by 
K.  against  D.,  in  which  K.  claimed 
the  whole  amount  named  in  this 
receipt,  it  was  held  that,  though  the 
original  receipt  for  100  dollars  was 
not  produced  nor  its  absence  ac- 
counted for,  that  circumstance  was 
not  of  itself  sufficient  to  exclude 
K.  from  the  benefit  of  the  receipt 
for  the  whole  amount,  including 
the  100  dollars  acknowledged  to 
have  been  previously  received. /6i'c/. 

8.  Neither  hearsay  nor  irrelevant 
testimony  is  admissible. —  Wilson 
v.  Hardinr/ 241 

9.  A  sheriff's  acknowledgment  that 
he  had  collected  money  on  an 
order  of  sale,  can  not  be  ])roved 
to  sustain  an  action  for  the  money 
against  the  sheriff's  surety,  unless 
the  acknowledgment  was  made 
whilst  the  sheriff  was  acting  offi- 
cially in  relation  to  the  receipt  of 
the  monev. — Shelby  v.  The  Governor. 

289 

10.  A  party  is  not  permitted  to  prove 
what  one  of  his  witnesses  swore  to 
on  a  former  trial  of  the  cause,  until 
he  has  proved  that  the  witness  is 
dead. — Hobson   v.    Doe   d.   Harper. 

308 

11.  A  paper,  purporting  to  be  an 
affidavit  made  before  a  justice 
of  the  peace  in  another  county, 
was  offered  in  evidence.  Held,  that 
there  must  be  proof  of  its  authen- 
ticity in  order  to  authorize  its  ad- 
mission ;  but  that  it  might  be 
proved  by  parol  evidence. — Hac/a- 
man  v.  Stafford 351 

12.  If  the  defendant  believes  the 
plaintiff's  evidence  insufficient  to 
sustain  the  action,  he  should  obtain 
the  decision  of  the  Circuit  Court  on 
the  subject,  by  asking  instructions 
to  the  jury,  by  a  motion  for  a  new 
trial,  or  in  someother  way.  With- 
out some  such  previous  proceeding, 
though  the  evidence  be  set  out  in  a 
bill   of    exceptions,    the   Supreme 

89) 


498 


INDEX. 


Court  can  take  no  notice  of  the 
question. — Sims  et  al  v.  Givan... 461 
13.  If,  in  the  course  of  a  witness's 
examination,  he  appears  from  his 
own  answei's  to  be  incompetent, 
the  party  against  whom  the  evi- 
dence is  given,  siiould  move  to 
strilte  out  tiie  testimony.  But,  if 
no  objection  be  made  below  to  the 
evidence,  its  admission  can  not  be 
assigned  for  error Ibid. 

EXCEPTIONS. 
See  Chancery,  13,  14,  27. 

EXECUTION. 

See  Chancery,  31 ;  Damages,  5 ; 
Replevin,  2,  3 ;  Right  of  Prop- 
erty ;  Trial  of  ;  Sheriff,  3-6, 
8;  Trust  and  Trustee,  6;  Ven- 
dor AND  Purchaser,  1,  2,  4-8,  15, 
22,  23,  25,  28,  '29,  33,  34. 

1.  An  execution  commanding  the 
sheriff  that  of  the  goods  of  A.,  B., 
and  C,  he  make,  &c.,  which  D.  had 
recovered  against  the  said  A.  and 
others,  is  not  objectionable  for  not 
stating  the  recovery  to  have  been 
against  the  said  defendants  A.,  B., 
and  C.  ;  the  expressions  being  sub- 
stantially the  same. — iM'Coy  et  ul 
v.  Elder 183 

2.  A  constable  is  virtually  within  the 
provisions  of  the  statute,  requiring 
sheriffs  to  pay  rent  before  the  re- 
moval of  goods  taken  in  execu- 
tion on  demised  pi-emises ;  and 
when  sued  for  improperly  paying 
rent,  he  is  bound  to  give  some  evi- 
dence that  the  rent  was  due. — 
Unc/Ies  V.  Graves 191 

3.  A  fieri  facias,  by  statute  expressly 
commands  the  sheriff  to  make  the 
money  of  the  goods  and  chatties, 
lands  and  tenements  of  the  debtor. 
— FrukeA  V.  Brown 295 

4.  A  note  for  the  payment  of  money 
can  not  be  taken  and  sold  on  exe- 
cution.—J/' C/e/Zand  V.  Hubbard.Sei 

EXECUTORS     AND     ADMINIS- 
TRATORS 
See  Justice  of  the  Peace,  8 ;  Sure- 
ty, 2,  3. 

1.  If  a  devastavit  be  established 
against  an  administrator,  his  sure- 
ties can  not  afterwards  controvert 
the  devastavit. —  The  Governor  v. 
Shelbij 26 

2.  If   the  plaintiff'  name  himself  as 


administrator,  in  a  suit  on  a  judg- 
ment recovered  in  his  own  name 
on  promises  made  to  himself,  no 
profert  of  the  letters  of  administra- 
tion is  necessary  :  the  word  admin- 
istrator may  be  considered  as  sur- 
plusage, or  as  a  descriptio  personse. 
—  Capp  V.  Gilman 45 

3.  The  declaration,  in  such  a  case, 
may  be  in  the  debet  and  detinet. 

Ibid. 

4.  A  bill  was  drawn  on  an  adminis- 
trator payable  out  of  a  particular 
fund.  The  administrator  prom- 
ised the  holder  that  if  he  would 
retain  the  bill,  it  should  be  paid 
whenever  a  certain  farm  should  be 
sold.  Held,  that  as  the  considera- 
tion of  this  promise  arose  subse- 
quently to  the  intestate's  death,  no 
action  would  lie  against  the  ad- 
ministrator on  the  promise,  so  a.s 
to  charge  the  estate  of  the  intestate. 
— Mills  et  al.  v.  lunjkendall 47 

5.  The  promise  of  an  administrator, 
to  pay  a  debt  of  the  intestate,  need 
not  be  averred  in  the  declaration 
to  be  in  writing;  the  statute  of 
frauds  applying  to  the  proof  and 
not  to  the  declaration Ibid. 

6.  The  statute  requiring  executors 
and  administrators  to  give  bond 
with  surety  imposes  on  them  no 
new  duties;  but  it  gives  an  addi- 
tional remedy  to  creditors,  legatees 
and  i)ersoiis  entitled  to  distribu- 
tion.—  Eaton  \.  Benefield  et  al 52 

7.  A  creditor  can  not  sue  on  an  ad- 
ministration-bond until  after  he 
has  obtained  judgment  against  the 
estate  of  the  intestate Ibid. 

8.  A  legatee,  distributee,  or  creditor, 
until  his  claim  has  been  exhibited 
and  established  according  to  law, 
and  the  payment  thereof  has  been 
refused  by  the  executor  or  admin- 
trator,  is  not  a  party  injured  with- 
in the  meaning  of  the  statute,  and 
can  have  no  suit  for  his  bene- 
fit on  the  executor's  or  administra- 

.  tor's  bond Ibid. 

9.  The  declaration  on  a  bond  of  an 
execirtor  or  administrator  must 
show  the  relator  to  be  a  creditor, 
legatee,  or  distributee Ibid. 

10.  An  account,  commencing  ''  A.  B. 
debtor  to  C.  D.,"  and  then  setting 
out  the  items,  dates,  sums,  &c  ,  was 
filed  in  the  Circuit  Court  upon  the 
application  of  an  executor,  under 
the  statute  of  1824.     Held,  that  the 


(590) 


INDEX. 


498-499 


account  was  sufficiently  particular. 

—Sackett  V .  Wilson " ;  -.85 

21.  Assumpsit  against  an  adminis- 
trator on  promises  of  tlie  intestate. 
Pleas,  non-assumpsit,  the  statute 
of  limitations,  and  plene  adminis- 
travit.  Judgment  against  the  de- 
fendant (le  bimis  propriis.  Held, 
that  as  neither  of  the  pleas  was 
false  within  the  defendant's  knowl- 
edge, the  judgment  de  bonis  proprii-i 
was  erroneous ;  but  as  this  was  only 
a  clerical  mistake,  time  would  prob- 
ably be  given  for  its  amendment 
below,  were  there  no  other  error  in 
the  case. — Kin(j  v.  Anthony 131 

12.  In  an  action  against  an  adminis- 
trator, if,  on  the  pleas  of  non-as- 
sumpsit and  plene  administravit, 
the  jury  find  for  the  plaintiff,  they 
shouldalso  find  the  amount  of  the 
assets  in  the  defendant's  hands,  un- 
administered Ibid. 

13.  Letters  testamentary  or  of  admin- 
istration, granted  in  another  state, 
will  not  authorize  the  executor  or 
administrator  to  commence  a  suit 
in  this  state,  unless  the  letters  be 
previously  recorded  in  tlie  Circuit 
Court  of  "the  county  in  which  the 
suit  is  commenced.— ^Vayor  wMoodii 
ctal 2-1" 

14.  In  an  action  by  an  administrator 
de  bonis  non,  the  declaration  should 
state  the  name  of  the  first  adminis- 
trator, and  contain  an  averment  of 
non-payment  to  him. —  Vanbluricum 
ei  id.  V.  Yeo 322 

15.  The  settlement  of  an  administra- 
tor's accounts  in  the  Probate  Court 
is,  prima  facie,  correct ;  and  a  Court 
of  chancery  will  not  interfere  with 
it,  except  in  clear  cases  of  mistake 
or  hand.— Allen  v.  Clark  et  <d  ...343 

16.  If  an  administrator  suffer  judg- 
ment by  default,  he  can  not  after- 
wards, by  the  common  law,  in  an 
action  against  him  suggesting  a  de- 
vastavit, plead  plene  administravit. 
Moore  V.  Martindale 353 

17.  The  statute  of  1822,  authorizing, 
under  those  circumstances,  the  plea 
of  plene  administravit,  does  not  af- 
fect cases  in  which  the  judgment 
bv  default  was  suffered  previously 
to  the  statute Ibid. 

18.  The  jurisdiction  of  a  Court  of 
chancery  extends  to  the  accounts 
of  administrators,  though  settled 
in  tlie  Probate  Court,  if  there  be 


evidently  a  mistake  or  fraud  in  the 
settlement. — Brackenridgev  .Holland 
et  al -377 

19.  If  an  administrator,  authorized 
b}'  an  order  of  Court  to  sell,  at  pub- 
lic sale,  the  real  estate  of  liis  intes- 
tate for  the  jiayment  of  debt.s,  pur- 
chase the  land  him.self  at  the  sale, 
and,  afterwards,  sell  the  same  at  an 
advanced  price,  he  is  liable  to  ac- 
count for  the  profits  to  the  heirs, 
for  whose  benefit  the  administra- 
tor's purchase  must  be  considered 
to  have  been  made.  And  the  effect 
is  the  same,  whether  tiie  purchase 
be  made  by  the  administrator  alone 
or  jointly  with  another  ;  or  whether 
it  be  made  in  person  or  by  an 
agent -Ibid. 

20.  If,  owing  to  the  conduct  of  the 
administrator,  any  uncertainty  ex- 
ist as  to  the  amount  of  the  profits 
made  by  him  on  the  purchase,  he 
will  be  chargeable  with  the  largest 
amount  which,  from  the  circum- 
stances, he  can  be  presumed  to  have 
rea  1  ized .Ibid. 

21.  Debt  by  A,  against  B.,  adminis- 
trator of  C,  on  a  bond  of  the  intes- 
tate for  860  dollars.  Damage,  100 
dollars.  Pleas,  non  est  factum  and 
plene  administravit.  Verdict  for  the 
debt,  and  for  481  dollars  and  60 
cents  damages  ;  in  all  1,341  dollars 
and  60  cerits.  Judgment  for  the 
same,  de  bonis  propriis,  with   costs. 

Held,  that  the  judgment  is  erroneous  : 
1st,  because  it  is  de  bonis  propriis  ; 
and,  2d,  becau.se  it  is  for  a  greater 
sum  than  is  laid  in  the  declaration. 
— Johnson  v.  Hawkins ...459 

22.  Held,  also  that  the  jury  should 
have  not  only  found  the  amount  of 
the  debt  auddamages,  but  also  the 
amount  of  assets  in  the  defendant's 
hands Ibid. 


FAILURE  OF  CONSIDERATION 

See  Chancery,  33  ;  Pleading,  6,  14. 

FALSE  IMPRISONMENT. 
See  Trespass. 

FALSE  RETURN 

See  Sheriff,  3-G. 

FEME  COVERT. 
I  If   a  wife  commit  an   indictable   of- 


(591) 


499-500 


mDEX. 


fence,  without  the  presence  or  co- 
ercion of  her  husband,  she  alone  is 
responsible  for  the  offence. — Penny- 
baker  v.  The  State 484 

FIERI  FACIAS. 
See  Execution,  3. 

FORCIBLE     ENTRY    AND    DE- 
TAINER. 

1.  Tiie  complainant,  in  an  action  of 
forcible  entry  and  detainer,  stated 
that  the  defendant  with  force  and 
arms  unlawfully  and  forcibly  en- 
tered upon  the  plaintiff's  land*(par- 
ticularly  described),  and  him  the 
plaintifi'  with  force  and  arms  did 
expel  and  unlawfully  put  out  of 
possession  :  Held,  that  this  com- 
plaint could  not  be  objected  to  after 
verdict,  for  not  showing  more  par- 
ticularly that  the  plaintiff  had 
peaceable  possession  of  the  prem- 
ises before  the  injury  complained 
of. —  Test  V.  Deters.:.'. 80 

2.  The  verdict  in  the  Circuit  Court 
for  the  plaintiff,  on  appeal,  in  a 
case  of  forcible  entry  and  detainer, 
must,  as  on  the  trial  before  the  jus- 
tices, be  signed  by  all  the  jurors. 

Ibid. 

3.  A.  removed  from  a  house  and  lot, 
leaving  a  few  articles  in  the  house 
and  on  the  lot,  and  fastened  the 
door.  In  the  night  of  the  second 
day  afterwards  —  the  door  being 
proved  to  have  been  still  fast  on 
the  evening  of  that  day — B.  enter- 
ed into  the  house  and  put  a  tenant 
in  possession,  directing  him  to  pre- 
vent every  person,  and  A.  particu- 
larly, from  taking  possession,  and 
threatening  to  beat  and  prosecute 
any  one  who  should  enter  on  the 
premises.  Tliere  was  no  direct 
proof,  however,  that  B.  broke  open 
the  door.  On  the  complaint  of  A. 
against  B.  for  a  forcible  entry  and 
detainer,  held,  that  the  evidence 
would  justify  a  finding  against  the 
defendant  as  to  the  forcible  entry, 
and  that  it  was  clear  against  him 
as  to  the  forcible  detainer,  which, 
u_nderthestatute,entitled  the  plain- 
tiff to  restitution.— £'(77/  v.  Coturcll. 

FORMER  RECOVERY. 
1.  If  a  plea  of  former  recovery  con- 
tain sufficient  matter  to  show  that 
tile  causes  of  action  in  the  two  suits  j 


are  the  same,  and  that  the  merits 
were  determined  in  the  first  case, 
the  plea  is  good  ;  and  it  is  not  es- 
sential to  the  validity  of  the  plea 
that  tlie   forms  of  the  two  actions 

be  the  same. — Cutlery.  Cox 178 

A  plea  of  former  recovery  to  an 
action  on  the  case  founded  en  tort, 
can  not  be  objected  to  merely  be- 
cause the  first  action  was  covenant ; 
the  causes  of  action  appearing  to 

be  the  same Ibid. 

If  a  plea  of  former  recovery  aver 
the  causes  of  action  to  be  the  same, 
and  the  record  do  not  show  them 
to  be  different,  the  averment,  on  a 
demurrer  to  the  plea,  must  be  taken 

as  true Ibid. 

To  an  action  of  covenant  for  not 
furnishing  such  a  boat  as  is  re- 
quired by  a  contract  under  seal, 
accord  and  satisfaction  may  be 
pleaded  in  bar  ;  and  if,  on  thetrial 
of  an  issue  to  a  replication  denying 
the  plea,  there  be  a  verdict  and 
judgment  for  the  defendant,  the 
merits'of  the  case  are  settled,  and 
the  judgment  is  a  bar  to  any  future 
action,  though  founded  on  tort,  for 

the  same  cause Ibid. 

5.  To  render  a  former  recovery  an 
estoppel  to  a  subsequent  suit,  em- 
bracing the  same  matter  in  contro- 
ver.sy  with  the  first,  the  judgment 
must  be  specially  pleaded  as  an 
estoppel.  If  it  be  not  so  pleaded, 
and  the  defendant  rely  on  the  gen- 
eral issue,  the  former  judgment  is 
admissible  in  eyidence,  but  it  is 
not  a  conclusive  bar  to  the  action: 
the  jury  may  still  find  for  the  plain- 
tiff', if  they  think  him  entitled  to 
recover.— J"('c(?Me);  v.  M' Kay 465 

FORNICATION. 
See  Adultery  ;  Slander,  2. 

FRAUD. 
See   Chancery,   31 ;   Covenant,  1  ; 
Judgment,  4;    Pleading,  19; 
Trespa.ss  on  the  Case,  2;   Ven- 
dor AND  Purchaser,  10,  11. 

FRAUDS,  STATUTE  OF. 

See  Executors  and  Administra- 
tors, o;  Trust  and  Trustee,  2; 
Vendor  and  Purchaser,  34. 

A.  and  B.  purchased  jointly  a  land- 
office  certificate  for  a  tract  of  laud, 
on  which  there  were  some  improve- 

(592) 


INDEX. 


500-501 


ments,  and  the  assignment  of  the 
certificate  was  made  to  A.,  who 
had  paid  more  of  the  purchase- 
money  than  B.  The  purchasers, 
by  a  parol  agreement,  divided  the 
huid.  By  this  agreement,  A.  re- 
ceived several  acres  more  than  B., 
together  with  the  improved  part  of 
the  premises,  and  was  to  pay  B.  a 
certain  sum  as  the  difference  in 
value  of  the  two  parts,  and  to  as- 
sist B.  in  improving  his  part.  Each 
of  the  parties  took  possession  of  his 
own  part  of  the  premises.  Held, 
that  the  agreement  was  not  affect- 
ed, in  equity,  by  the  statute  of 
frauds. —  Gree^i  ei  al  v.  Vardivian  et 
al 324 

FRAUDULENT  CONVEYANCE. 

See    Ejectment,  2  ;  Lis    Pendens  ; 

Vendor  and  Purchaser,  25. 

1.  The  heirs  of  A.  filed  a  bill  in 
chancery  against  the  administra- 
trix and  heirs  of  B.  The  bill  states 
that  B.,  deceased,  was  the  adminis- 
trator  of  the    estate  of  the  com- 

.  plainants'  father  ;  that  he  sold  the 
property  which  came  into  his 
hands  as  administrator  for  a 
large  amount,  the  most  of  which 
he  converted  to  his  own  use ;  and 
that  his  estate  is  insolvent.  It  fur- 
ther states  that  B.,  in  his  life-time, 
conveyed  a  certain  tract  of  land  to 
his  son,  one  of  the  defendants,  for 
the  purpose  of  defrauding  the  com- 
plainants. The  prayer  of  the  bill 
is,  that  a  decree  be  rendered  for 
the  amount  of  the  complainants' 
claim,  and  that  the  land  so  fraudu- 
lently conveyed  be  sold  to  satisfy 
the  same.  The  bill  was  taken  pro 
confesm. 

The  Court,  on  examination  of  the  bill, 
allegations,  and  proofs,  decreed 
that  the  defendants  should  pay  to 
the  comphiiuanls  the  sum  of  491 
dollars;  and,  if  the  same  were  not 
paid  on  service  of  a  copy  of  the  de- 
cree, the  land  should  be  sold,  &c. — 
Sweny  et  al.  v.  Ferguson  et  ul 129 

2.  A.  obtained  judgment  against  B. 
on  a  note,  and  purchased,  at  the 
sheriff's  sale  under  the  judgment, 
a  tract  of  land  which  B.,  after  the 
date  of  the  note  and  before  the 
judgment,  had  conveyed  to  C.  A. 
brought  an  action  of  ejectment  for 
the  land  against  C,  and  the  ques- 
tion was,  whether  B.'s  deed  to  C. 


Vol.  II.— 38 


(593) 


was  fraudulent  and  void  as  to  A. 
Held,  that  evidence  of  B.'s  having, 
stated,  that  the  consideration  of 
the  deed  to  C.  was  a  valuable  one, 
was  not  admissible.  Held,  also,  that 
the  note  on  which  the  judgment 
was  rendered  was  admissible  to 
show  the  existence  of  the  debt  be- 
fore the  date  of  the  deed. —  Doe  d. 
Helm  V.  Neuiand 2o3 

3.  A  wife  has  a  lawful  claim  upon 
her  husband  for  her  maintenance  ; 
and  if,  during  the  pendency  of  her 
petition  for  a  divorce  and  alimony, 
a  conveyance  of  his  land  be  execu- 
ted by  the  husband  in  order  to  de- 
fraud his  wife  of  her  right  to  a 
support,  and  be  received  by  the 
grantee  wiih  the  same  fraudulent 
design,  the  conveyance  as  to  her  is 
void. — Frakes  v.  Brown 295 

4.  A  deed,  fraudulent  as  to  a  judg- 
ment-creditor, may  beset  aside  at 
the  suit  of  the  purchaser  at  sher- 
iff's sale  under  the  judgment.. /6(V?. 

5.  To  render  a  deed  fraudulent  and 
void  as  to  creditors,  there  must  be 
fraud  in  the  grantee  as  well  as  in 
the  grantor [bid. 

6.  A  person  indebted  to  several  oth- 
ers and  in  insolvent  circumstances, 
executed  a  conveyance  of  his  real 
estate  to  his  children,  in  consid- 
eration of  a  nominal  sum  and  of 
natural  love  and  affection,  and 
with  an  intent  to  defraud  his 
creditors.  Two  of  the  grantees  were 
daughters  and  afterwards  mar- 
ried. The  grantor  continued  in 
possession,  contracted  other  debts 
subsequently  to  the  deed,  and  died 
insolvent,  field,  that  the  convey- 
ance was  voluntary,  and  fraudulent 
and  void  as  to  the  creditors  of  the 
grantor.— 0'.Br/e;»  et  ul  v.  Coulter  el 
al 421 

FRAUDULENT  JUDGMENT. 

A  person  against  whom  suits  were 
depending  for  bona  fide  debts,  con- 
fessed a  judgment  in  favor  of  an- 

•  other,  without  consideration,  to  de- 
fraud his  creditors.  The  debtor's 
real  estate  was  purchased,  under  an 
execution  on  this  judgment,  by  the 
judgment-creditor.  .Judgments  were 
afterwards  obtained,  by  the  bona 
fide  creditors,  in  their  respective 
suits,  and  executions  issued  there- 
on and  returned  "no  property 
found."     The  Court,  on  a  bill  filed 


501 


INDEX. 


by  the  bona  fide  creditors,  set  aside 
the  fraudulent  judgment,  execu- 
tion, and  sale,  and  ordered  the  land 
to  be  sold  to  satisfy  the  complain- 
ants' demand. — Braner  el  al  v.  Man- 
ville  et  al 485 

G. 

GAMING. 

See  Jurisdiction,  3. 

GUARDIAN  AND  WARD. 

1.  An  infant,  after  his  guardian's 
death,  has  a  right  to  compel  a  set- 

.  tlement  of  his  accounts  as  if  he 
were  of  age ;  the  guardian's  trust 
being  personal,  and  terminating  at 
his  death. — Pech  et  al  v.  Braman  et 
al 141 

2.  In  the  case  of  a  guardianship  un- 
til the  ward  is  of  full  age,  liie  gen- 
eral rule  is,  that  the  ward  must  be 
of  age  before  he  can  require  his 
guardian  to  account ;  yet,  in  chan- 
cery, award  may,  during  his  minor- 
ity, call  such  a  guardian  to  account, 
if" any  thing  should  occur  which 
makes  it  necessary Ibid. 

3.  The  guardianship  of  minors,  and 
the  adjustment  of  their  accounts, 
form  a  conspicuous  branch  of  chan- 
cery jurisdiction... Ibid. 

H. 
HUSBAND  AND  WIFE. 
See  Abatement,  3 ;  Alimony  ;  Feme 
Covert  ;    Fraudulent    Convey- 
ance, 3. 

I. 

ILLEGITIMATE  CHILDREN. 
See  Bastardy. 

INDEMNITY. 

See  Sheriff,  4,  5. 

INDICTMENT. 

See  Costs,  2,  3  ;  Error,  4 ;  Malicious 
Trespass  ;  Perjury,  2  ;  Receiv- 
ing Stolen  Goods. 

1.  An  indictment  for  an  assault  with 
intent  to  commit  a  felony,  must 
show  with  certainty  the  particular 
felony  intended  to  be  committed. — 
The  Stale  V.  Hailstock 257 

2.  A  common  assault  is  not  an  indict- 
able offence.  It  is  punishable,  bow- 
ever,  by  a  justice  of  the  ]R'ace../6irf. 

3.  An  indictment  for  retailing  spiri- 

(5 


luous  liquors  to  div.rs  persons 
without  license,  is  bad.  It  should 
either  contain  the  names  of  the 
person  to  whom  the  sale  was  made, 
or  state  their  names  to  be  un- 
known.—TAe  State  V.  Stuckij 289 

INDORSEMENT. 

See  Bond,  1,  4, 5  ;  Promissory  Notes, 
2-7. 

INFANT. 

See  Ejectment,  3 ;  Guardian  and 

Ward. 

INQUIRY,  WRIT  OF. 

See  Bond,  6,  9 ;  Damages,  1,  4-7. 

L  The  appearance  of  a  defendant  on 
the  execution  of  a  writ  of  inquiry, 
without  objecting  to  the  previous 
proceedings,  cures  any  irregulari- 
ties as  to  the  time  when  the  capias 
was  executed  or  the  declaration 
filed. —  White  v.  Rankin  et  al 78 

2.  The  awarding  of  a  writ  of  inquiry 
after  the  defendant's  failure  to  ap- 
pear on  being  called,  without  the 
previous  entry  of  an  interlocutory 
judgment,  is  a  mere  informality, 
and  can  not  be  assigned  for  error. 
Ibid. 

INSOLVENT  LAWS,  EFFECT  OF 
DISCHARGES  UNDER. 

1.  A  debtor  was  discharged,  under 
an  insolvent  law  of  Ohio,  as  to  the 
imprisonment  of  his  person,  from  a 
debt  due  to  the  payee  on  a  promis- 
sory note.  The  parties  resided  in 
Ohio,  and  the  debt  was  there  con- 
tracted. Held,  that  the  debtor 
might  plead  the  discharge,  so  far 
as  respected  theimprisonmentof  liis 
person,  in  bar  of  an  action  brought 
against  him  in  this  state  on  the 
note  by  an  assignee  thereof. — Puyh 
V.  Bussel 366 

2.  A.,  having  become  indebted  to  B. 
in  the  state  of  Ohio,  where  they 
both  resided,  gave  his  note  to  B. 
for  the  debt  dated  in'  1821.  In 
1823,  the  parties  being  still  resi- 
dent in  Ohio,  A.  took  the  benefit  of 
the  insolvent  law  of  that  state,  and 
was  discharged,  so  far  as  respected 
arrest  and  imprisonment,  from  all 
Iiis  debts,  that  of  B.  among  the 
rest.  Afterwards,  A.  removed  to 
this  state  ;  and,  to  an  action  against 
liim  on  the  note,  brought  by  C.,  the 

94) 


INDEX. 


501-502 


the  assignee  of  B.,  he  pleaded — in  ' 
discharge  of  his  person  from  arrest  j 
or  imprisonment  for  the  debt — his  | 
above-mentioned  discharge  in  Ohio. 
Held,  on  general  demurrer,  that  the 
plea  was  good. — Pugh  v.  Bmsel..S94: 

3.  Until  congress  exercise  the  right 
of  passing  uniform  laws  on  the  sub- 
ject of  bankruptcy,  any  state  may 
enact  a  bankrupt  law  not  impairing 
the  (il)ligation  of  contracts Ibid. 

A.  A  state  law  merely  discharging 
the  person  of  the  debtor  from  im- 
prisonment, not  his  after-acc^uired 
property,  for  debts  contracted  in 
the  state  between  its  citizen.s,  is 
constitutional — whether  the  debt 
was  contracted  before  or  after  the 
passage  of  the  law.  But,  if  the  law 
discharges  the  debtor's  after-ac- 
quired property  as  well  as  his  per- 
son, a  discharge  under  it  is  not 
valid  unless  the  creditor  make  him- 
self a  party  to  the  proceedings 
which  lead  to  the  discharge. ..iiiV/. 

5  A  discharge,  by  a  state  law,  has 
no  operation  out  of  the  slate  over 
contracts  not  made  and  to  be  car- 
ried into  effect  .within  the  state; 
nor  over  the  citizens  of  other  states, 
who  do  not  make  themselves  par- 
ties to  the  proceedings  under  the 
law Ihid. 

6.  A  discharge  under  an  insolvent 
law,  of  the  person  and  not  of 
after-accjuired  property,  may  be 
pleaded  in  discharge  of  the  per.son 
from  imprisonment ;  and  the  judg- 
meni  lor  the  plaintiff,  if  the  plea  be 
supported,  is,  that  he  recover  his 
debt,  &c.,  to  be  levied  not  on  the 
per.son  of  the  defendant,  but  only 
on  his  property  Ibid 

INSTRUCTIONS  TO  JURY. 
See  Court,  1,2;  Interest,  5  ;  Jury, 

3,7. 

1.  If  a  new  contract  be  made  re- 
specting money  previously  lent, 
and  a  new  security  be  given,  the 
interest  should  be  calculated  up  to 
the  time  of  the  new  contract  and 
added  to  the  principal  ;  but  this 
calculation  is  not  to  l)e  made  at 
every  agreement  for  forljearance  of 
payment  where  no  change  is  made 
in  the  securities. —  Harvey  v.  Craiv- 
J'ord  etdl 43 

2.  Whenever  a  sufficient  payment  is 
made,  the  interest  must  he.  tirst  di.'^- 


charged  ;  but  if  the  payment  be 
less  than  the  interest,  the  balance 
of  the  interest  does  not  become 
principal Ibid 

3.  It  is  a  general  rule  that  interest  is 
not  allowable  on  the  open,  unliqui- 
dated accounts  of  merchants. — 
Sheivel  v.  Givan 312 

4.  Witnes.ses  are  not  admissible  to 
prove  a  custom  of  merchants  in 
the  city  of  another  state  allowing 
them  to  charge  ir,:ciest  on  their 
accounts,  when  the  Courts  of  that 
state  have  refused  to  recognize  the 
custom Ibid 

5.  Interest  was  charged  by  the  plain- 
tiff on  an  account  for  goods  sold 
for  which  he  sued.  Held,  that,  all 
the  evidence  not  being  shown,  he 
could  not,  in  error,  complain  of  the 
instructions  to  the  jury,  that  they 
might  allow  interest  or  not,  at 
their  discretion Ibid 

ISSUE. 
See  Pleading,  13  ;  Practice,  2. 

1.  The  issue  on  nul  tiel  record  is  for 
the  Court,  not  for  the  jury  to  de- 
cide.— Barker  V.  M'Qure  14 

2.  Issues  on  three  pleas  in  bar  to  the 
whole  cause  of  action.  The  first 
triable  by  the  Court ;  the  second 
and  third  by  a  jury.  The  second 
and  third  were  tried  and  found  for 

.  the  plaintiff.  Held,  that  the  plain- 
tiff could  not  have  judgment  until 
he  had  also  succeeded  on  the  first 
issue Ibid. 

3.  Two  pleas  in  bar  to  the  whole 
cause  of  action.  An  issue  in  law 
on  one  and  of  fact  on  the  other. 
Verdict  for  the  plaintiff.  Held, 
that  final  judgment  could  not  be 
rendered  «  n  the  verdict,  until  tiie 
issue  in  law  was  disposed  of. — Riley 
el  al.  V.  Harkness  34 

4.  Assumpsit  on  a  promissory  note. 
Two  pleas,  l.st,  non-assumpsit  and 
issue;  2d,  as  to  part,  a  failure  of 
consideration.  Replication  as  to 
the  second  plea,  demurrer  and  judg- 
ment for  the  plaintiff.  Held,  that, 
whilst  the  fir.st  issue  was  undisposed 
of,  the  plaintiff  could  not  have  final 
judgment  for  the  amount  of  the 
note. — Mitchell  v.  Sheldon  el  al  ...185 


JOINDER. 

See  Demurrer  :  Replevin,  3. 
1.  If  the  plaintifi,  in  an  action  against 


(595) 


502-503 


INDEX. 


two,  proceed  to  judgment  against 
one  alone,  and  the  record  do  not 
contain  a  .return  of  the  writ  that 
the  other  liail  not  been  found,  and 
a  suggestion  of  such  a  return,  the 
judgment  will  be  reversed  on  error. 

King  V.  Anthony 131 

2.  If  a  suit  be  brought  on  a  collect- 
or's bond  against  the  principal  and 
sureties,  it  is  error  to  take  judg- 
ment against  the  sureties  alone, 
without  a  suggestion  on  the  record 
of  the  sheriff's  return  to  the  writ 
of  "non  est  inventus"  as  to  the 
principal. —  Thompson  et  al.  v.  The 
Goiernor 142 

JUDGE. 
See  Trespass. 

JUDGMENT. 
See   Disseisin,  3 ,    Executors   and 
AnMIXlSTRATORS,    11,     15-18,     21. 
Fraudulent  Judgment;  Lien,  1 ; 
Replevin,  7,  8. 

1.  A  scire  facias  was  issued  by  a  jus- 
tice of  the  peace  in  Ohio,  on  the 
transcript  of  a  judgment  of  another 
justice  there ;  and,  on  a  return  of 
the  writ  "  not  found."  judgment 
was  rendered  for  the  plaintiff.  On 
that  judgment,  an  action  was 
brought  in  a  justice's  Court  of  this 
state.  Htld,  that  the  judgment, 
having  been  rendered  without  sei'- 
vice  of  the  writ,  or  the  return  of 
two  niliils,  would  not,  on  common 
law  principles,  support  the  action. 
Held,  also,  that  if  the  judgment  was 
authorized,  by  a  statute  of  Ohio,  on 
one  return  of  "  not  found,"  the  dec- 
laration should  have  shown  that 
fact.— C'w  V.  Cotton  et  al. 82 

2.  file  constitution  of  the  United 
States,  requiring  full  faith  and 
credit  to  ije  given  in  each  state  to 
the  judicial  proceedings  of  every 
other  state,  does  not  apply  to  a 
judgment  which  has  been  rendered 
without  the  defendant's  having  had 
legal  notice  of  the  suit Ibid. 

3.  The  judgment  of  a  Court  of  record 
of  competent  jurisdiction  in  one 
state,  fairly  obttiined,  where  the  de- 
fendant had  personal  notice  of  the 
suit,  is  conclusive  between  the  par- 
ties in  an  action  on  it  in  any  other 
state;  and  the  circumstance  that 
judgment  is  against  the  defendant 
as  sjiecial  bail,  makes  no  difierence. 
—Boll  v.  Allmuuj 108 


4.  To  an  action  on  the  judgment  of  a 
Court  in  another  state,  the  defen- 
dant may  plead  that  the  judgment 
was  obtained  by  fraud,  or  that  the 
Court  had  no  jurisdiction  of  the 
person  or  of  the  subject-matter.  Ibid 

5.  A  judgment  obtained  conformably 
to  the  laws  of  the  state  against  a 
person  resident  therein,  without 
personal  notice  of  the  suit,  is  not 
conclusive  against  him  in  an  action 
on  it  in  another  .state ;  nor  is  such 
judgment  absolutely  void  as  the 
judgment  of  a  Court  having  no  ju- 
ri.'sdiction.  The  judgment,  in  such 
case,  stands  on  the  same  footing 
with  a  foreign  judgment ;  and  if  it 
be  against  special  bail,  he  may,  in 
an  action  on  it  in  another  state, 
plead  that  no  ca.  sa.  had  issued 
against  his  principal Ibid. 

6.  A  judgment,  after  being  replevied 
by  the  execution  of  a  replevin- 
bond,  was  assigned.  Held,  that  pay- 
ment by  the  debtor  on  his  replevin- 
sureties  to  the  original  judgment- 
creditor,  before  notice  of  the  assign- 
ment, was  valid. —  Gamble  et  al.  v. 
Cummins 235 

7.  If  a  debtor  pay  his  judgment-cred- 
itor a  sum  equal  to  the  amount  of 
the  judgment,  and  thereby  cause 
the  judgment  to  be  assigned  as  a 
payment  to  another  of  his  creditors, 
the  transaction  does  not  discharge 
the  judgment,  but  the  same  con- 
tinues valid  in  the  hands  of  the 
assignee. — Hou-k  v.  Kimball  et  «/.309 

JURISDICTION. 
See  Chancery,  4-6,  11,  25;  Di- 
vorce, 1  ;  Executors  and  Admin- 
istrators, 15,  18;  Guardian  and 
Ward,  3  ;  Judgment,  4,  5  ;  Jus- 
tice OF  THE  Peace,  1,  2,  8  ;  Slan- 
der, 1 ;  Trespass,  2-5. 

1.  In  an  action  of  debt  before  a  justice 
of  the  peace,  on  a  bond  in  the  pen- 
alty of  175  dollars  conditioned  for 
the  delivery  of  property,  the  plain- 
tifl',  in  the  statement  of  his  demand, 
claimed  81  dollars  and  25  cents; 
Held,  that  the  justice  had  jurisdic- 
tion ;  the  sum  actually  demanded 
not  exceeding  100  dollars. —  Wash- 
burn  ct  (d.  v.  Payne 216 

2.  A  justice  of  Uie  i)eace,  under  the 
statute  of  1827,  has  jurisdiction  in 
actions  of  debt  on  penal  bonils  con- 
ditioned for  the  ]ierformance  of 
covenants,  when  the  penalty  does 


(596) 


INDEX. 


503-f)04 


not  exceed   100  dollars. — Evami  et 
al.  V.  Shoemaker 237 

3.  The  winning  of  any  sum  of  money, 
however  small,  at  a  game  with 
cards,  is  an  indictable  ofience  of 
which  the  Circuit  Court  has  exclu- 
sive jurisdiction. —  The  Stale  v.  At- 
hertson  251 

4.  Offences  punishable  by  a  fine  not 
exceeding  three  dollars  belong  ex- 
clusively to  the  jurisdiction  of  jus- 
tices of  the  peace.  Other  offences, 
punishable  by  a  fine  which  may  be 
more  or  less  than  three  dollars  ac- 
cording to  circumstances,  are  cog- 
nizable only  bv  the  Circuit  Court. 

Ihid. 

5.  Trespass  de  bonis  asportatis.  Plea, 
that  the  defendant,  as  a  justice  of 
the  peace,  had  entered  a  fine  against 
the  plaintiff' for  an  assault  commit- 
ted by  him  in  the  defendant's  pres- 
ence. Held,  on  demurrer,  that  the 
plea  was  bad,  because  it  did  not 
show  but  that  the  fine  was  imposed 
in  the  offender's  absence. — Logan  v. 
Siggerson 266 

6.  A  justice  of  the  peace  has  jurisdic- 
tion of  a  cause  commenced  by  no- 
tice and  motion,  if  the  notice  .set 
forth  a  claim,  not  exceeding  100 
dollars,  for  which  debt  or  assump- 
sit  would   lie. —  Cotvgill  v.  Woode7i 

332 

JURY. 

1.  The  circumstance  that  some  of  the 
grand  jurors  who  had  found  an  in- 
dictment, were  above  sixty  years  of 
age  is  no  objection  to  the  indict- 
ment.—TAe  State  \.  Miller 3-5 

2.  The  statute  of  1824  excuses  per- 
sons above  sixty  years  of  age  from 
serving  on  juries,  if  they  choose  to 
claim  the  privilege;  bnt  the  party 
indicted  can  not  object  to  them  on 
that  ground  Ibid. 

3.  The  jury,  about  to  retire  to  con- 
sider of  (heir  verdict,  were  instruc- 
ted by  the  Court,  that  should  they 
agree  before  the  meeting  of  the 
Court  on  the  following  day,  they 
might  seal  up  their  verdict,  dis- 
perse, and  hand  in  their  verdict  on 

.  the  next  morning.  The  jury  gave 
in  their  verdict  on  the  next  morn- 
ing. Held,  1st,  that  as  the  record 
did  not  show  the  dispersion  of  the 
jury,  no  objection  founded  on  their 
dispersion  could  be  noticed  on  a 
writ  of   error  ;  2d,  that  as  tlie  in- 


struction was  not  objected  U.  when 
given,  the  dispersion.,  were  :■  shown 
could  not  be  assigiiei.!  fm  error 
Bosleyv.  Farquar  et  at 16 

4.  If  one  of  the  petit  jurors,  sum- 
moned to  try  an  indictment,  was  on 
the  grand  jury  that  found  the  bill, 
the  defendant  m:iy  challenge  him. 
But  lie  can  not,  on  that  ground, 
move  for  a  new  trial  after  a  verdict 
of  guilty,  if  he  knew  of  the  object- 
ion, and  omitted  to  make  it,  when 
the  jury  was  impaneled. — Barlov  v. 
The  State..... ^ 114 

5.  The  affidavits  of  jurors  may  be  re- 
ceived in  support  of  their  verdict, 
but  not  to  impeach  it /6k/. 

6.  If  a  juror,  during  the  trial  of  a 
cause,  converse  with  a  by-stander, 
or  leave  the  Court  room,  without 
consent  of  the  Court,  it  is  a  misde- 
meanor for  which  he  may  be  pun- 
ished. But  if  the  investigation  of 
the  cause  was  not  interrupted,  if 
nothing  took  place  which  could  in- 
fluence the  juror,  and  if  no  attempt 
was  made  to  tamper  with  him,  the 
misconduct  will  not  entitle  the  de- 
fendant to  a  new  trial,  after  a  ver- 
dict against  him,  even  in  a  case  of 
manslaughter  Ibid. 

7.  The  jury  are  the  judges  of  the 
facts,  both  in  civil  and  crimin:>l 
cases ;  but  they  are  not,  in  either, 
the  judges  of  the  law.  They  are 
bound  to  find  the  law  as  it  is  pro- 
pounded to  them  by  the  Court. 
They  may,  indeed,  find  a  general 
verdict,  including  both  the  law  and 
the  facts;  but  if,  in  such  verdict, 
they  find  the  law  contrary  to  the 
instructions  of  theCourt,they  there- 
by violate  their  oath. —  Townsend  v. 
TheState 151 

8.  A  party  has  the  same  right  to  a 
jury,  in  a  cause  commenced  by  no- 
tice and  motion,  that  he  has  in 
other  cases.— 'Co?('r/i7/  v.  Wooden-'.iZ"! 

9.  If  the  sheriff,  a  party  in  the  cause, 
have  summoned  the  jurors  selected 
under  the  statute  of  1827,  the  array 
mav,  for  that  reason,  be  challenged. 

Ibid. 

10.  A  person  under  a  prosecution  for 
a  capital  offence  about  to  be  sub- 
mitted to  a  grand  jury,  may  chal- 
lenge any  of  the  grand  jurors  for 
cause,  but  not  peremptorily. — Joiie^ 
V.  The  State  47-"> 

11.  One  of  the  grand  jurors  in  such  a 
case,  in   answer   to  a  question  put 


(597) 


504 


INDEX. 


lo  him  by  the  prosecuting  attorney, 
said,  "that  he  thought  he  could 
not  in  his  conscience  tind  any  man 
guilty  of  an  offence  that  would  sub- 
ject him  to  death."  Held,  that  the 
juror  was  disqualified Ibid. 

12.  Challenges  to  petit  jurors  nre  first 
made  by  the  prisoner,  and  after- 
Avards  bV  the  prosecuting  attorney 

Ibid. 

13.  The  record  in  a  capital  case 
showed  that,  after  the  petit  jury 
were  sworn,  the  Court  adjourned 
from  one  day  to  the  next,  but  it 
did  not  show  that  the  jury  were 
legally  disposed  of  during  the  ad- 
journment. Held,  that  a  verdict 
and  judgment  against  the  defend- 
ant must,  under  those  circum- 
stance   be   considered   erroneous. 

Ibid. 

JUSTICE  OF  THE  PEACE. 
See  Indictment,  2 ;   Judgment,  1 ; 
Jurisdiction;   Oyer,  2;    Recog- 
.  nizance,  1,2;  Slander,  1 ;  Tres- 
pass. 

1.  Indictment  for  an  assault  and  bat- 
tery. Plea,  that  before  the  com- 
mencement of  the  prosecution,  the 
defendant  had  been  arrested  on  the 
warrant  of  a  justice  of  the  peace  of 
the  county  for  the  charge  set  forth 
in  Uie  indictment ;  and  that,  after 
a  full  examination  of  the  case,  the 
justice  had  acquitted  liim  of  the 
offence.  Held,  on  demurrer,  that 
the  plea  was  a  good  bar  to  the  pros- 
ecution.—  The  State  v.  M'Cory 5 

2.  The  statute,  authorizing  justices 
of  the  peace  to  punish  trivial 
breaches  of  the  peace  by  fine  not 
exceeding  three  dollars,  is  not  un- 
constitutional ;  and  it  is  discretion- 
ary with  the  justice  whether  to  try 
a  charge  of  a  breach  of  the  peace 
himself,  or  to  recognize  the  defend- 
ant to  answer  the  same  at  the  next 
term  of  the  Circuit  Court Ibid. 

3.  If  satisfaction  of  a  judgment  be 
entered  by  a  justice  of  the  peace 
on  his  docket,  he  and  his  sureties 
are  liable  for  the  amount  to  the 
judgment-creditor;  no  matter  for 
what  consideration  the  satisfaction 
was  entered,  unless  tlie  creditor  was 
a  party  to  the  arrangement. — I\Iod- 
isett  V.  The  Governor 1.35 

4.  On  the  docket  of  justice  A.,  which, 
for  some  reason  not  shown,  was  in 
justice  B.'s  hands,  there  was  a  re- 


ceipt purporting  to  be  signed  by  B. 
of  a  judgment  there  entered:  Held, 
that  the  receipt  was  not  admissible 
as  evidence  ngainst  B.,  without 
proof  of  his  having  executed  it. 

Ibid. 

5.  Debt  before  a  justice  of  the  peace 
on  a  l)ond  in  a  penalty  less  than 
100  dollars,  conditioned  for  the 
performance  of  covenants.  Held, 
that  no  statement  of  the  demand, 
except  the  filing  of  the  bond,  is  in 
such  case  necessary.  Held,  also, 
that  no  suggestion  of  breaclies  is 
required  in  such  a  case. — Evans  et 
al.  V.  Shoemaker 237 

6.  The  statute  of  1827  requires  that, 
in  justices'  Courts,  special  matters 
of  payment  and  set-off'  should  be 
stated  in  writing;  but,  in  other 
cases  generally,  special  pleas  are 
not  necessary  in  those  Courts. — 
Couxjill  V.  Wooden 332 

7.  In  a  cause  commenced  in  a  jus- 
tice's Court,  the  defendant  may, 
without  pleading  the  general  issue, 
give  any  matters  in  evidence  which, 
under  that  plea,  are  admissible  in 
other  Courts Ibid. 

8.  The  jurisdiction  of  justices  of  the 
peace  does  not  extend  to  cases  in 
which  an  executor  or  administra- 
tor is  either  plaintiflT  or  defendant. 
— Simonds  v.  Calvert  et  al 413 


LANDLORD  AND  TENANT. 

See  Contract;  Covenant,  2-6  ;  Dis- 
tress ;  Execution,  2. 

1.  The  under  lessee  of  real  estate  has 
a  right  to  jnirsue  thereon  any  law- 
ful business  he  chooses,  which  is 
not  ])rohibited  I)y  the  lease  to  his 
lessor  nor  by  that  to  himself:  and 
whicii  is  not  injurious  to  the  prem- 
ises.—  Taylor  v.  Oiven  et  al .301 

2.  Same  point  decided.  —  Taylor  v. 
3IoffaU  et  al 304 

LEASE. 
See  Covenant,  2-6 ;  Landlord  and 

Tenant. 

LEX  DOMICILII. 
See  Divorce,  3.  . 

LICENCE. 
See  Spirituous  Liquors,  Retailing 


(508) 


INDEX. 


505 


LIEN. 
See  Alimony;  Covenant,  3;  Tkover. 
3 ;  Vendor  and  Purchaser,  16, 33, 

1.  The  lien  of  a  judgment  is  not  ex- 
tinguished by  the  execution  of  a 
replevin-bond,  but  continues  until 
the  judgment  is  actualij'  satisfied. 
—Doe  d.  ^Sheets  v.  Boe 195 

2.  If  a  person  have  a  lien  on  goods 
for  the  price  of  hauling  them  to  a 
place  of  deposit,  his  subsequently 
claiming  them  as  his  own,  and  re- 
fusing, on  that  ground,  to  deliver 
them  to  the  owner,  is  a  waiver  of 
the  lien. — Picquet  v.  JSVKay 465 

3.  If  A.  deposit  with  B.  a  quantity  of 
grain  for  safe  keeping,  and,  at  the 
time  of  making  the  deposit,  borrow 
money  and  buy  goods  on  credit  of 
B.,  the  law  creates  no  lien  for  the 
debt  on  the  grain,  in  the  absence 
of  any  agreement  to  that  efiect. 

Ibid. 

LIMITATIONS,  STATUTE  OF. 
See  Bastardy,  5 ;  Partnership,  8. 

1.  At  the  foot  of  an  account  con- 
taining several  items,  charged  in 

1817,  there  was  the  following  ac- 
knowledgment :  "I  acknowledge 
the  above  account  to  be  just — Tho. 
Neighbors."  Held,  that  this  ac- 
knowledgment was  a  written  con- 
tract which,  under  the  act  of  as- 
sembly, was  not  barred  by  the  stat- 
ute of  limitations. — Neighbors  v. 
Simmona 75 

2.  In  1804,  the  father  of  B.  and  C.  de- 
livered to  B.,  in  England,  75/.,  with 
directions  to  pay  the  same  to  C.  on 
the  latter's  arrival  in  ,\merica.  In 

1818,  C.  came  to  America  where  B. 
was  then  resident,  and  accounts  on 
both  sides  immediately  commenc- 
ed between  them,  and  continued 
running  until  1826.  The  75/.  was 
charged  in  the  account  of  C.  against 
B.  Held,  that  these  mutual  ac- 
counts, including  the 75/.,  were  not 
within  the  statute  of  limitations; 
some  of  the  items  having  been  fur- 
nished within  five  years  before  the 
commencement  of  the  suit. — Knipe 
v.  Knipe 340 

LIS  PENDENS. 
See  Fraudulent   Conveyance,   3 ; 

Vendor  and  Purchaser,  24. 
1.  The  pendency  of  an  action  of  slan- 
der does  not,  of  itself,  render  the 

(5 


defendant's  sale  and  conveyance  of 
real  estate  void  as  to  the  plaintiff: 
though  a  judgment  be  afterwards 
recovered  against  the  defendant, 
and  he  have  no  other  property  to 
satisfy  the  debt. — Ray  et  el.  v.  Hue 

d.  Broim  ■■ 258 

2.  The  pendency  of  an  action  is  con- 
structive notice  of  the  matter  in- 
volved in  that  suit :  and  a  piir- 
chaser  of  the  property  which  is  the 
immediate  object  of  the  pending 
action  will  be  affected  by  it,  as  a 
purchaserwith  notice Ibid. 

LOST  BOND. 
See  Evidence,  5. 
Debt  oh  a  bond.  Plea,  a  failure  of 
consideration,  in  consequence  of  the 
non-performance,  by  the  obligee,  of 
the  condition  of  a  certain  bond 
which  was  lost.  Held,  that  the  loss 
of  the  bond  did  not  j^reclude  the 
defence.- Pe7ice  (/  «/.  v.  Smock  ...315 

LOST  RECORD. 
See  Evidence,  5. 

M. 

MALICIOUS  PROSECUTION. 

1.  A  made  an  affidavit  before  a  jus- 
tice of  the  peace,  stating  that  he 
had  lost  certain  goods,  which  he 
believed  were  concealed  in  the  pos- 
session of  B.  The  justice  thereupon 
issued  a  warrant  against  B.  for 
larceny.  B.  was  arrested  on  the 
warrant  and  afterwards  acquitted. 
Held,  that  A.'s  af^davit  contained 
no  criminal  charge,  and  that  he 
was  not  therefore  lial>leto  B.  in  an 
action  for  a  malicious  prosecu- 
tion.— M  'Neely  v.  DriskiU 259 

2.  Case  by  A.  against  B.  Counts  in 
malicious  pro.secution  for  perjury, 
and  in  slander  for  words  charging 
the  same  crime.  Plea,  that  .\.  had 
committed  the  perjury  alleged. 
Held,  that  B.  might  prove,  on  the 
trial,  that  A.  had  given  advice  as 
to  the  best  mode  of  commencing 
the  suit  against  B.,  in  support  of 
which  A.  was  said  to  have  after- 
wards committed  i)erjury ;  and 
might  also  jirove  that  A.  had  re- 
ceived information,  before  he  gave 
his  evidence,  tending  to  show  the 
want  of  any  foundation  for  the  suit 
against  B. — Scott  v.  Morlsinr/ei:..A^^ 

3.  Held,  also,  that  the  defendant,  un- 

99) 


505-506 


INDEX. 


der  the  plea  in  this  case,  might 
show  that  there  was  a  probable 
cause  for  his   prosecution  against 

the  i)lnintiff Ibid. 

4.  The  plaintiff,  in  the  above-men- 
tioned cause,  in  order  to  show  ma- 
lice in  the  defendant,  had  a  right 
to  prove  that  the  slanderous  words 
charged  in  the  declaration  had 
been  spoken  after,  as  well  as  before, 
the  commencement  of  the  suit. 

Ibid. 

MALICIOUS  TRESPASS. 
An  indictment  charged  the  defendant 
with  having,  by  shooting,  malici- 
ously wounded  and  injured  a  young 
mare,  the  property  of  A.,-  of  the 
value  of  80  dollars!  Held,  that  the 
indictment  was  bad,  under  the  sta- 
tute, for  not  stating  the  amount  of 
damages  occasioned  by  the  injury 
complained  of. —  The  Stale  v.  Peden. 

371 
MARRIAGE. 
See  Abatement,  3. 
In  an  action  for  a  breach  of  promise 
of  marriage  the  plaintiflf  may  in- 
troduce  evidence  of   seduction. — 
Whale7i\.  Layman 194 

MEASURE  OF  DAMAGES. 

See  Dam.ages,  2,  3,  5;  Seat  of  Jus- 
tice, 3;  Vendor  and  Purchaser, 

20. 

MERCHANTS'  ACCOUNTS. 
See  Interest,  3-5. 

MILITIA  FINES. 

See  Pleading,  12. 

1.  An  alias  or  pluries  list  of  militia 
fines  may  be  issued  by  the  judge 
advocate  against  the  delinquents, 
whether  they  be  persons  conscien- 
tiously scrupulous  of  bearing  arms 
or  not;  and  it  is  not  necessary  for 
such  list  to  be,  like  an  execution, 
in  the  name  of  the  state. — Levelling 
V.  Leaieil 163 

2.  An  action  on  a  sheriff's  bond,  for 
not  collecting  militia  fines  due  to 
the  county  seminaries,  lies  in  the 
name  of  the  state  on  the  relation 
of  the  treasurer,  who  is  the  trustee 
of  the  hind.— The  Slate  v.  M'Clune 
ctal 192 

MISTAKE. 

1.  A.,  being  the  agent  of  a  county, 


sold  certain  town  lots  belonging  to 
the  county  to  B.,  and  gave  him  a 
title-bond  for  the  same.  The  bond 
was.  by  mistake  and  contrary  to 
the  intention  of  both  parties,  so 
drawn  and  executed  as  to  appear 
obligatory  on  A.  personally.  Held, 
that  the  mistake  could  not  be 
pleaded  in  bar  to  an  action  at  law 
against  A.  on  this  bond. — Lindley  v. 

Cravens  426 

2.  Held,  also,  that  after  a  judgment 
obtained  against  A.  on  the  bond,  he 
might,  by  a  bill  in  chancery,  have 
the  judgment  enjoined,  and  the 
mistake  in  the  bond  corrected  ;  but 
tiiat  the  county  as  well  as  B.  must 
be  made  a  party  to  the  suit. ..Ibid. 

MORTGAGE. 

See  Vendor  and  Purchaser,  9. 

1.  If  a  person,  holding  a  bond  for 
the  payment  of  money  secured  by 
a  mortgage  on  real  estate,  proceed 
first  upon  the  mortgage,  he  is  pre- 
cluded by  the  statute  of  1824  from 
any  other  remedy.  But  he  may 
proceed  first  upon  the  bond  to  judg- 
ment, sell  the  mortgaged  property 
on  execution,  and  hold  the  obligor 
liable  for  any  balance  that  may  re- 
main due;  in  case  the  obligee 
waives  his  claim  under  the  mort- 
gage, and  the  purchaser  at  sheriflf's 
sale  hokk  the  land  freed  from  the 
mortgage. —  Youse  v.  ]\I'Cre.ary..243 

4.  A  person,  holding  a  bond  and  mort- 
gage for  a  debt,  may  proceed  first 
by  an  action  on  the  bond,  and  sub- 
ject all  the  deV)tor's  ]iro|)erty  both 
real  and  personal  to  his  judsment, 
without  abandoning  his  lien  on  the 
mortgaged  premises,  unless  he  have 
taken  them  in  execution.  But  if 
the  creditor  elect  to  proceed  first  on 
his  mortgage,  he  is  obliged  by  the 
statute  of  1824  to  rely  alone  on  the 
mortgaged  premises  for  a  satisfac- 
tion of  his  demand. — JSlaikle  el  ah  v. 
Rapp  €t  at 465 


NEW  TRIAL. 

See  Error,  2,  3.  5,  9,  10 ;  Jury.  4-6. 

A  new  trial  should  not  be  granted  in 
an  action  on  tort,  on  the  ground 
that  the  damages  are  excessive,  un- 
less they  appear  at  first  blush  to  be 
outrageous  and  excessive.  —  Pirijuet 
y.M'Kay 43') 


(600) 


INDEX. 


506-507 


NOLLE  PROSEQUL 
A  nolle  profsefjui  to  the  whole  declara- 
tion has  the  effect,  not  of  a  retraxit, 
but  of  a  discontinuance;  and  is  no 
bar  to  a  subsequent  suit  for  the 
same  cause. — Lambert  v.  Sanford. 

137 
NONSUIT. 
See  Replevin,  8. 

NOTICE. 

See   Lis  Pendens,  2 ;  Vendor  and 

Pltrchaser,  2,  30. 

NOTICE  AND  MOTION. 

See  Jurisdiction,  6  :  Jury,  8 ;  Rec- 
ords; Burned. 

NUL  TIEL  RECORD. 
See  Issue,  1. 

O. 

OATH. 

See  Perjury. 

OYER. 

1.  Oyer  of  a  record  is  nev^r  granted. 
Cupp  V.  Gilman 45 

2.  Although  over  of  a  record  is  not 
demandable,  yet  if  profert  of  the 
record  of  a  judgment  on  which  the 
suit  is  brought  be  made  and  oyer 
granted,  the  defendant  may  demur 
if  the  judgment  be  of  no  validity. 
So,  if  the  judgment  be  of  a  justice's 
Court  in  another  state,  which  is  not 
a  Court  of  record. —  Cone  v.  Cotton 
etal 82 

3.  To  deny  oyer  where  it  ought  to  be 
granted  is  error,  but  not  e  conrer.fo. 
—  The  State  v.  Hicks  el  al 336 


PARENT  AND  CHILD. 

L  A  father  may  claim  the  services 
of  his  cliildren,  whilst  they  are 
under  lawful  age  and  are  support- 
ed by  him.  But  should  he,  at  any 
time,  relin(iuish  that  claim,  the 
{)i'ofits  of  his  children's  labor  then 
belong  to  themselves,  and  can  not 
be  seized  l>y  the  creditors  of  the 
father. — Jenisoii  etal.  v.  Gravesetal. 

440 

2.  If  a  son  of  full  age  purchase  land 
to  be  paid  for  in  labor,  and  his 
father  being  employed  for  the  pur- 
pose by  the  son,  perform  a  part  of 
the  work  ;  or  if  tlie  payiuont  is  to  be 

(00 


in  money,  and  the  father  lend  his 
son  a  part  of  the  money  with  which 
the  payment  is  made— a  trust  pro 
ianto,  will  not,  in  either  of  those 
cases,  result  to  the  father Ibid. 

PAROL  AGREEMENT. 
See  Contract. 

PAROL  EVIDENCE. 
See  Evidence,  5,  6,  II  ;  Trust  and 
Trustee,  2,  7,  11;   Vendor  and 
Purchaser,  9,  28. 

PARTIES. 

See  Abatement  ;  Chancery,  22,  23, 
29  ;  Joinder  ;  Militia  Fines,  2 ; 
Mistake,  2 ;  Pleading,  7 ;  Re- 
plevin, 1,  2,  3  ;  Trust  and  Trus- 
tee, 4 ;  Vendor  and  Purchaser,  9. 

1.  The  defendant  had  signed  a  sub- 
scription paper  promising  to  pay 
a  certain  sum  of  money  towards  ile- 
fraying  the  expenses  of  erecting 
the  public  buildings  at  Conners- 
ville,  provided  a  new  county  should 
be  established,  and  Connersville  be 
made  the  seat  of  justice,  the  money 
to  be  paid  into  the  hands  of  any 
person  whom  the  board  of  commis- 
sioners of  the  new  county  should 
authorize  to  receive  it.  Held,  that 
the  county  agent,  having  no  legal 
or  beneficial  interest  in  the  con- 
tract, could  not  sue  upon  it  in  his 
own  name. — Harper  v.  Maf/an 39 

2.  If  the  agent  had  been  specially  ap- 
jDointed  by  the  commissioners  to 
receive  the  money,  which  was  to  be 
paid  to  any  person  thus  appointed, 
that  circumstance  would  not  have 
authorized  a  suit  in  his  own  name. 

Ibid. 

3.  Sembte,  that  if  one  person  promise 
another  for  the  benefit  of  a  third, 
the  third  person  may  sue  Ibid. 

PARTNERSHIP. 

See  Evidence,  2,  3,  6. 
1.  The  doctrine  that  tlie  separate 
debt  of  one  partner  should  not  be 
paid  out  of  the  partnership  estate, 
until  all  the  debts  of  the  firm  are 
discharged,  is  correct  ;  but  it  does 
not  apply  until  the  partners  cease 
to  have  a  legal  right  to  dispose  of 
their  property  as  tliey  please  It 
is  applicable  only  when  the  prin- 
ciples of  eipiity  .'ire  i>rought  to  in- 
terfere in  the  distribution  of    tlie 

1) 


507 


INDEX. 


partnership  property  among  the 
creditors. — M^ Donald  et  «/.  v.  Beach 
etal 55 

2.  Those  e([uitable  principles  operate 
on  the  property  remaining  in  the 
possession  of  the  partners,  and  em- 
brace all  that  has  been  fraudu- 
lently disposed  of  ;  but  they  ilo  not 
extend  to  such  as  has  been  previ- 
ously transferred  by  the  firm  in 
good  faith Ibid. 

3.  Although  one  partner  can  not  bind 
his  co-partner  b)'  deed,  yet  a  deed 
executed  by  one  for  himself  and 
partner,  in  the  other's  presence 
and  by  his  authority,  is  the  deed 
of    both. — Modisell  v.  Lindley  el  al. 

119 

4.  Assumpsit  by  partners  for  work 
and  labor.  HekL  that  evidence  of 
the  statements  of  one  of  the  part- 
ners, made  after  the  dissolution  of 
the  partnership,  so  far  as  they 
tended  to  show  a  new  contract  de- 
stroying the  partnership  claim,  and 
giving  to  each  partner  a  separate 
demand  for  his  part  of  the  debt. 
was  not  admissible;  but  that  the 
statements  of  such  partner,  so  far 
as  they  showed  a  payment  made  to 
himself,  might  be  proved.  —  LeJ'i- 
vour  el  al.  v.  Yandes  et  al 240 

5.  Payment  of  a  debt  to  one  partner 
of  a  firm  is  good  against  the  other 
partners ;  and  a  release  by  one 
partner  to  a  debtor  of  the  firm  is 
obligatory  on  tlie  others. —  Yandes 
el  al.v.  Lefuiour  et  al 371 

6.  Assumpsit  in  the  name  of  A.  and 
B.  against  C.  for  work  and  labor 
performed  by  the  plaintifi's  as  part- 
ners. The  defendant  offered  to 
prove  admissions,  made  by  one  of 
the  plaintiffs  after  the  partnership 
was  dissolved,  tending  to  show  that, 
after  the  dissolution,  the  parties 
had  made  a  different  contract  re- 
specting the  payment  for  the  work 
than  that  under  which  the  work 
iiad  been  done.  Held,  that  the  evi- 
dence was  inadmissilile Ibid. 

7.  The  admission  of  one  partner  as 
to  the  existence  of  a  debt  against 
the  firm,  made  subsequently  to  the 
dissolution  of  the  partnership,  is 
not  binding  on  the  other  jiarlners. 

Ibid. 
S.   An    acknowledgment    of    a   debt, 
made  l)V  one  partnei'  after  a  disso- 
lution   of    the   [)artnersiu[),    is   not 
surticient   to  take  a  case  out  of   the 


statute  of  limitations  as  to  the  other 
partners Ibid. 

PAWN. 

See  Pledge. 

PAYMENT. 

See  Bond,  12  ,  Judgment,  6, 7;  Part- 

NER.SHIP,  4-6. 

PERJURY. 

1.  In  an  indictment  for  perjury,  the 
oath  said  to  be  false  was  charged 
to  have  been  administered  in  the 
Circuit  Court  ijy  S.  C.  as  deputy 
clerk.  Held,  that  no  proof  of  the 
appointment  of  the  deputy  clerk 
was  necessary  ;  that  in  administer- 
ing the  oath,  S.  C.  acted  under  the 
superintendence  of  the  Court ;  and 
that  the  oath  was  as  obligatory  as 
if  it  had  been  administered  by  one 
of  tli«  judges. — Server  v.  The  Slate. 

35 

2.  An  indictment  for  perjury  must 
show  conclusively  that  the  testi- 
mony given  by  th^  defendant,  and 
charged  to  be  false,  was  material 
to  the  issue  on  the  trial  of  which 
he  was  sworn. — Weathers  v.  The 
State  278 

3.  If  a  witness,  with  an  intention  to 
deceive  the  jury,  swear  so  as  to 
make  an  impression  on  their  minds 
that  a  fact  material  in  the  cause  is 
different  from  what  it  really  is,  and 
from  what  he  knows  it  to  be,  he  is 
guilty  of  perjury. — Scott  v.  Mort- 
sinffcr 454 

PLE.XDING 
See  Abatemext,  1,2;  Attachment, 
1;  Bastardv.  2;  Bond,  2,  7,  10, 
11 ;  Condition  Precedent,  1 ;  Con- 
stable, 2:  Corporation,  1:  De- 
murrer ;  Executors  and  Ad.min- 
ISTRAT0R.S,  2,  3,  5,  l).  11,  12,  14,  16, 
17;  Forcible  Entry  and  Detain- 
er, 1;  Former  Recovery:  In- 
solvent Laws,  Effect  of  Dis- 
charges Under,  1,  2,  6;  Judc;- 
MENT,  1,  4,  5:  Jurisdiction,  5; 
Justice  of  the  Peace,  1,  5-7; 
Lost  Bond  ;  Oyer  ;  P  r  o  f  e  r t  ; 
Promissory  Notes,  4 ;  Recogni- 
zance. 3 ;  Seat  of  Justice,  2 ; 
Slander,  3,  5;  Statute.  2,  Ten- 
der, 2;  Trespas.-.  1,  3-5:  Vari- 
ance; Vendor  and  Purchaser, 
3,  lU.  17,  IS,  21.;  Waiver. 


(002) 


INDEX. 


507-508 


1.  A  special  plea  of  non  est  factum, 
alleging  a  material  alteration  of 
the  bond  without  the  obligor's  con- 
sent, may,  if  not  sworn  to,  be  re- 
jected on  motion;  but  it  caa  not 
be  treated  as  a  nullitv. — Rileij  et  al. 
\-.Harkne,i .' 34 

2.  The  plaintiff  can  not  demur  and 
reply  to  the  same  plea Ibid. 

3.  A.  assigned  to  B.  a  note  against 
C.  in  payment  of  a  judgment  which 
B.  had  obtained  against  A. ;  and 
it  was  agreed  that  if  the  money 
could  not  be  obtained  by  due  course 
of  law  from  C,  A.  would  pay  "to  B 
the  amount  due  on  the  judgment. 
Held,  that,  in  a  suit  by  B.  against 
A.,  after  a  failure  to  recover  the 
money  from  C,  an  averment  in  the 
declaration  that  the  plaintiff'  had, 
without  delay,  prosecutetl  C.  to  in- 
solvency without  obtaining  the 
money,  is  insufficient;  that  due 
diligence,  in  the  prosecution  of  a 
suit,  is  a  matter  of  law  arising  out 
of  the  facts  of  the  case,  which  facts 
must  be  set  out  that  the  Court  may 
determine  whether  they  show  due 
diligence  or  not;  that  the  time 
when  and  the  place  where  suit  was 
instituted,  the  time  judgment  was 
obtained,  the  nature  of  the  execu- 
tion, the  time  it  issued,  and  the 
sheriff's  return,  should  be  set  forth, 
—  Harvinyton  v.  Wtthewic 37 

4.  Covenant  on  an  obligation  for  the 
payment  of  money.  Plea  of  pay- 
ment and  a  release,  which  release 
the  plaintiff"  had  since  destroyed. 
Replication,  that  the  plaintiff  had 
not  destroyed  the  release.  Held, 
that  the  plaintiff,  not  having  speci- 
ally demurred  to  the  plea  for  du- 
plicity, as  he  might  have  done, 
was  bound  to  answer  all  its  parts ; 
and  that  the  replication,  therefore, 
not  denying  the  payment,  was  in- 
sufficient.-Reno  et  (d.  V.  HollowelL.^S 

5.  If  the  county  and  circuit,  in  which 
an  action  on  the  judgment  of  a 
Court  in  another  state  is  brought, 
be  named  in  the  margin  of  the  dec- 
laration, no  objection  can  be  made 
for  want  of  a  venue. — Capp  v.  Gil- 
vian ^5 

6.  The  act  authorizing  a  defendant, 
in  actions  of  assumpsit,  to  plead  a 
warrant  or  failure  of  consideration 
special! V,  is  cumulative,  and  does 
not  take  away  the  party's  right,  ex- 
isting l.)efore  the  act,  to  avail  him- 


self of  such   a  defence  under    the 
general  issue. — Jamison  v.  Buckner. 

'.  A  declaration  stated  that  .\..  P. 
and  C,  county  commissioners  ol 
the  county  of  Scott,  complained  of 
the  administrator  of  D.  for  money 
had  and  received  by  the  intestate 
to  the  use  of  the  plaintiffs,  and 
which  he  had  not  paid  to  the 
plaintiffs.  Held,  that  the  words 
"county  commissioners  of  the  coun- 
ty of  Scott,"  were  only  a  dem-ipti" 
per.ionurum. —  White  v.  Runkin  et  ul. 

78 

8.  If  two  replications  be  filed  to  one 
plea,  the  defendant  may  deai\ir 
specially  for  the  duplicity  ;  but  a 
rejoinder  to  the  replications  cures 
the  objection. —  Kino  v.  Anthony. 

131 

9.  Whatever  comes  under  a  vide- 
licet, if  inconsistent  with  the  pre- 
cedent matter,  may  be  rejected  as 
surplusage. — Blackwellv.  The  Board 
of  Justices  of  Laurence  County.. .\i'^ 

10.  It  is  sufficient  for  a  plea  of  justi- 
fication in  trespass,  to  justify  tliat 
which  is  the  gist  of  the  action, 
matters  merely  in  aggravation  need 
not  l)e  answered.- Lei t;//t)J(/  v.  Leuitil 
et  al ltJ3 

11.  A  plea  of  justification  in  trespass, 
can  not  be  objected  to  for  the  want 
of  a  venue;  the  place  being  laid  in 
the  declaration,  and  tlie  trespass 
justified  being  alleged  to  be  tlie 
same  with  that  complained  of../6;'c/. 

12.  If  A.  and  B.  justify  in  tresp  is-;, 
as  sheriff' and  deputy  sheriff,  under 
an  alias  list  of  militia  fines  issued 
by  a  judge  advocate,  the  })le  i  nuHl 
show  which  of  the  defendants  is 
the  sheriff',  and  which  the  depulv, 

Jbiil. 

13.  If  there  be  two  pleas,  each  to  tlie 
whole  cause  of  action,  and  one  on 
demurrer  be  adjudged  good,  the 
plaintiff  can  proceed  no  further. — 
Cutler  w.  Cox -.17^ 

14.  If,  to  assumpsit  on  a  promissory 
note,  the  defendant  plead  a  failure 
of  consideration  on  account  of  the 
non-delivery  of  goods,  the  plaintiff 
may  reply  generally  that  the  con- 
sideration has  not  failed.  The  note 
is  prima  facie  evidence  of  a  consid- 
eration ;  and  the  want  or  failure 
of  consideration,  in  such  case,  must 
be  jdeaded  and  {)roved. — Mitchell  v. 
Sheldon  ef  al 1S5 


0)03) 


508  509 


INDEX. 


15.  It  is  unnecessary,  in  the  declara- 
tion on  a  sheriff's  bond,  to  aver  a 
non-payment  of  the  penaltj'.  Aliter, 
in  the  case  of  penal  tjonds  payable 
bv  one  private  person  lo  another. 
^The  State  y.  JWClane  etal 192 

16.  If  a  plea,  in  bar  of  a  writ  of  error, 
answer  only  a  part  of  the  errors  as- 
signed, it  is  bad  on  demurrer. — 
MiUnr'v.  Farrar 219 

17.  A  release  of  errors  executed  for 
the  purpose  of  procuring  an  injunc- 
tion, may  be  pleaded  in  bar  of  a 
writ  of  error,  although  the  injunc- 
tion had  bten  refused  and  tlie  bill 
dismissed  Ibid. 

18.  If  a  plea  of  accord  and  satisfac- 
tion by  the  delivery  to  the  plain- 
tifi'  of  certain  property,  does  not 
state  a  time  when  the  delivery  was 
made,  it  is  bad  on  special  demur- 
rer.— Pence  et  al.  v.  Smack 315 

19.  A  general  plea  to  an  action  on  a 
bond,  thai  the  bond  had  been  ob- 
tained by  fraud  and  covin,  without 
setting  out  the  particulars  of  the 
fraud,  is  good  Ibid. 

20.  Debt  against  the  administrator  of 
A.  on  a  joint  and  several  bond  ex- 
ecuted by  A.  and  B.  to  the  jilain- 
tift',  conditioned  for  the  perform- 
ance of  covenants.  Plea,  that  the 
intestate  was  only  a  surety ;  that 
the  plaintiff  had  agreed  with  B., 
witbout  the  defendant's  knowledge, 
to  lake  a  judgment  by  confession 
against  B.  for  275  dollars,  in  a  suit 
on  the  l)ond  then  pending  against 
him,  it  l)eing  a  less  sum  than  the 
jilaintiff  pretended  lie  could  recov- 
er :  and  to  take  a  judgment  against 
the  present  defendant  for  the  costs 
of  an  action  then  pending  against 
him  on  the  bond  ,  that  judgments 
had  been  rendered  conformably  to 
tliis  agreement.  Held,  that  this 
plea  was  not  double  ;  and  that  it 
was  a  good  bar  to  the  action. — 
Porter  v.  Brackenridye 385 

21.  .\  plea,  to  be  objectionable  for 
duplicity,  must  cont  un  more  than 
one  valid  defence  to  the  .suit  ...Ibid. 

22.  Debt  against  A.  on  a  penal  bond 
jjayable  to  the  state.     The  condi- 
tion of  tlie  bond  was,  that  A.  should 
well  and  truly  discharge  the  duties  , 
of  collector  of  the  state  and  county  | 
revenue    of   Owen    county  for  the  ! 
year  1829,  and  pay  over  the  same 
as  by  law  re(|uired.     The  declara- 
tion, alter  setting  out  the  bond  and  | 


condition,  averred  that  A.  had  not 
paid  over  the  taxes  assessed  on  the 
county  of  Owen  to  the  county  treas- 
urer, nor  accounted  for  the  same  to 
the  said  treasurer,  in  the  manner 
prescribed  by  law.  Held,  on  spe- 
cial demurrer,  that  the  declaration 
was  insuflicient. — Evans  el  <il.  v.  The 

State 387 

23.  A  declaration  in  debt  on  an  at- 
tachment-bond, after  setting  out 
the  bond  and  condition,  averred 
that  the  attacliment  bad  been  sued 
out,  brought  to  issue,  tried,  and 
adjudged  to  be  void,  without  cause, 
tortious,  and  oppressive  ;  and  that 
the  plaintiff  had  been  much  op- 
pressed, and  put  to  great  trouble 
and  expense,  in  defending  him- 
self against  said  false,  feigned,  and 
vexatious  proceedings  of  the  de- 
fendant. //('/(/,  on  special  demur- 
rer, th;it  the  determination  of  the 
attachment-suit,  the  damages  su.s- 
taincd,  and  the  want  of  cause  for 
the  attachment,  were  .set  out  with 
sufficient  certaint}'. — Morris  el  al.  v. 
Price  457 

PLEDGE. 

The  absolute  right  of  property  and 
the  right  of  possession  in  a  note, 
which  had  been  pledged  for  the 
payment  of  a  debt,  become,  on  pay- 
ment of  the  debt,  vested  in  the 
pledgor  ;  and  if  the  note  be  after- 
wards converted  by  the  pledgee  to 
his  own  use,  he  is  liable  to  the 
pledgor  in  an  action  of  trover. — El- 
liott V.  Armslrontj ]  98 

PLENE  ADMINISTRAVIT. 

See   Executors   axd    Adminlstra- 
TORS,  11,  12,  16,  17,  28. 

PRACTICE. 

See  Chancery,  8,  9,  24,  27,  29  ;  De-. 
murrer  to  evidence;  evidence, 
12,  13  ;  Issue  ;  Joinder;  Jury,  12 ; 
Pleading,  1,  2,  13  ;  Sheriff,  1 , 
Waiver. 

1.  If  a  defence  be  filed,  which  is  not 
relevant  to  the  cause,  it  may  be 
rejected  on  motion.  —  Evans  el  al.  v. 
Shoemaker 237 

2.  The.issues  must  be  made  u])  before 
the  jury  are  sworn,  excejiting  only 
that  a  Similiter  may  be  dispensed 
with.— .S'((«/i  V.  Piuri/  291 


(604) 


INDEX. 


509-510 


3.  An  affidavit  bv  the  plaintiff's  at- 
torney, that  he  had  left  the  repli- 
cation on  the  clerk's  table  with  the 
papers  in  the  cause,  and  that  ithad 
afterwards  come  into  the  depo- 
nent's possession  by  mistake,  does 
not  show,  with  sufficient  certainty, 
that  the  replication  had  been  prop- 
erly filed Ibid. 

4.  The  party  on  whom  the  affirma- 
tive of  the  issue  lies  has  a  right  to 
open  and  conclude  the  cause. — 
Kimble  v.  Adair 320 

5.  If,  after  the  examination  of  a  wit- 
ness is  closed,  his  re-examination 
be  F.sked  for  and  refused,  this  Court 
will  presume  such  refusal  to  be 
correct,  unless  the  record  show  that 
there  was  a  good  cause  for  the  re- 
examination.— Scott  V.  Morlsinqer. 

"454 
PRESUMPTION. 
See  Bond,  12;    Error,  (5-8;    Prac- 
tice, 5;  Vendor  and  Purchaser, 
23. 


PRINCIPAL  AND  AGENT. 

See  Mistake;  Parties,  1,  2;  Sher- 
iff, 2,  7. 

1.  If  an  agent  execute  an  obligation 
for  his  principal,  not  warranted  by 
the  power,  the  principal  being  un- 
apprised of  the  nature  of  the  obli- 
gation, will  not  be  bound  by  it, 
though  he  was  in  the  room  when 
the  obligation  was  executed,  and 
tliough  his  subsequent  agent  con- 
ceived himself  authorized  to  com- 
ply with  similar  obligations  so  ex- 
ecuted by  the  first  agent.— il/brf!se« 
V.  Lindley  et  ul 119 

2    S.,  resident  in  another  state,  for- 
warded to  M.,  in  Indiana,  who  was 
not    an    attorney    at    law,    a    note 
against  H.  for  "200  dollars,  to  be 
collected.      M.  placed  the  note  in 
the  hands  of  an  attorney  at  law  for 
collection.     The  attorney  collected 
the    money,  and    left    the  country 
without  paying  it  over  to  M.  Held, 
that  S.  could  not,  under  the.se  cir- 
cumstances, sustain  an  action   for 
nionev  had    and    received    against 
M.     Held,  also,  that  if  M.  could  be 
made  liable  for  the  money  in  any 
form  of  action,  it  must  be  on  one  | 
founded  on  his  having  acted  fraud-  j 
ulently  or  imprudently  in  entru.st-  j 
ing  the  note  to  the  attorney  ;  or  on  : 
his    having    failed    to    use   proper  I 
means  to  obtain,  the  money  from  | 

(605) 


the  attornev  after  its  collection. — 

Madle  v.  Steele    344 

.  A.  deposited  with  B.  a  note  for  the 
payment  of  money  again.st  C,  to  be 
accounted  for  by  B.  to  A.  when 
collected.  B.  afterwards  gave  up 
this  note  to  the  sheriff  to  be  sold 
on  a  fee-bill  against  A.,  B.  and  D., 
in  a  case  in  which  X.  was  the  prin- 
cipal and  B.  and  D.  were  his  sure- 
ties. The  sherifi',  accordingly, 
levied  upon  and  sold  the  note  to 
satisfy  the  fee-bill.  Held,  that  B., 
for  tliis  breach  of  duty,  was  liable 
to  A.  in  an  action  on  the  case. — 

M  '  Clelland  v.  Hubbard 36 1 

[.  A.  agreed  in  writing  to  sell  to  B. 
a  tract  of  land  for  a  certain  sum. 
Payment  to  be  made  by  B.'s  deliv- 
ering to  A.,  or  to  his  agent,  C,  a 
boat  and  cargo  of  produce  by  the 
first  rise  of  the  Ohio  river,  suffi- 
cient to  take  boats  over  certain 
rapids  in  the  river.  If  the  boat, 
&c.,  could  not  be  prepared  by  the 
time  specified,  the  payment  was  to 
be  subsequently  made  in  a  differ- 
ent manner.  The  conveyance  to 
be  made  when  the  land  should  be 
paid  for.  B.  took  pos.session  of  the 
land  ;  and  delivered  the  boat  and 
cargo  to  C,  as  A.'s  agent,  but  not 
till  several  weeks  after  the  first  rise 
of  the  river,  sufficient  for  the  pur- 
pose above-mentioned,  C,  took  the 
property  10  N.  Orleans;  but  what 
becameof  the  proceeds  did  not  ap- 
pear. 
Held,  that  C,  as  the  special  agent  of 
A,  to  receive  the  property,  had  no 
authority  to  receive  it  after  the 
first  riseof  the  river,  &c,»  and  that 
the  subsequent  delivery  of  the  same 
to  him  did  not  entitle  B.  to  a  con- 
veyance of  the  land  from  \.-Long- 
tvarth  V,  Conwell 469 

5.  Held,  also,  that  supposing  C.  to 
have  been  the  general  agent  of  A., 
still  the  delivery,  under  the  cir- 
cumstances of  the  case,  of  the  boat 
and  cargo  to  C,  after  the  time 
specified  in  the  contract,  was  not 
bind  ing  on  A   Joid. 

6.  It  is  a  general  rule  that  the  princi- 
pal is  bound  by  the  acts  of  his  gener- 
al agent,  though  the  agent  exceed 
his  private  instructions.  But  the 
rule  does  not  apply  to  cases  where 
the  person  dealing  with  the  agent  is 
apprised  of  the  existence  of  the 
private  instructions Ibid. 


510 


INDEX. 


PRINCIPAL  AND  SURETY. 

See  Surety. 

PROBATE  COURT. 

See    Executors    and   Administra- 
tors, 15, 18. 

PRO  CONFESSO. 
See  Chancery,  10  15,  16. 

PROFERT. 

See  Executors  and  Administra- 
tors, 2 ;  Oyer,  2. 

In  an  action  on  a  judgment,  profert 
ot  record  is  unnecessary  ;  the  jvoul 
paiel  per  recordum  is  sufficient  even 
on  special  demurrer. — Cupp  v.  Gil- 
man 45 

PROMISSORY  NOTES. 

See  Bond,  1,  4,  5, 12;  Corporation, 
2 ;  Execution,  4 ;  Pleading,  3, 
14,  19. 

1.  A.,  having  a  promissory  note 
against  B.  wliich  was  due,  promised 
him  by  parol  and  without  consid- 
eration, that  he  would  not  urge  the 
payment  until  a  certain  future 
time.  Held,  that  the  promise  was 
not  obligatory. — Bern/  v.  Bates.AIS 

2.  In  the  sale  of  personal  property, 
not  in  market  overt,  the  general 
rule  is,  that,  though  the  purchase 
be  bona  fide  and  lor  value,  the  pur- 
chaser receives  rto  better  title  th;\n 
that  of  which  the  .seller  was  pos- 
sessed. But  bills  of  exchange  and 
promissory  notes  are  exceptions  to 
this  rule  ;  when  they  are  originally 
payable  to  bearer,  or  when,  in  the 
first  instance,  they  are  payable  to 
order  and  afterwards  by  a  blank 
indorsement  become  payable  to 
bearer,  they  pass  by  delivery  ; 
and  the  purchaser  who  uses  due 
caution,  pays  a  valuable  consid- 
eration, and  takes  them  in  the  com- 
mon course  of  business,  has  a  good 
title  against  all  the  world,  whether 
tlie  seller  had  any  title  or  not.  A 
note  p;iyable  to  order,  however,  can 
not  ])ass  without  an  indorsement 
either  by  the  jiayee,  or  by  some 
person  in  the  payee's  name  and  by 
his  authoritv. — Elliott  v.  Armstrong. 

198 

3.  The  assignee  of  a  promissory  note, 
assigned  l)efore  it  was  due,  delayed 
thirty  days  after  it  became  due  be- 


fore he  sued  the  maker.  Held,  that 
the  indorser  was  not  liable,  in  such 
a  case,  for  the  maker's  default,  un- 
less the  indorsee  could  show  that 
an  earlier  proceeding  was  imprac- 
ticable, or  would  have  lieen  una- 
vailing.— Merrivuin  v.  Maple  ..350 
4.  Assumpsit  by  the  assignee  of  a 
promissory  note,  pavable  on  the 
30th  of  October,  1829,  against  the 
maker.  Plea,  that  the  payee  and 
another,  on  the  day  the  note  was 
given,  executed  to  the  maker  their 
obligation  for  the  delivery  of  a  cer- 
tain quantity  of  bricks  on  the  1st 
of  May,  1829;  that  the  note  was 
given  in  consideration  of  the  de- 
livery of  the  bricks  ;  that  the  liricks 
had  not  been  delivered,  and  the 
consideration  of  the  note  had  there- 
fore failed.  i7e/f/,  on  demurrer,  that 
t-lie  plea  was  a  good  bar  to  the  ac- 
tion . — Bowles  v.  Nevby 3(i4 

5.  The  indorser  of  a  note,  under  our 
statute,  warrants  two  things  :  1st, 
that  the  note  is  valid  and  the  maker 
liable  to  pay  it ;  2d,  that  the  maker 
of  the  note  is  solvent  and  able  to 
pay  it. — Hoivellv.  Wilsov 418 

6.  If  the  indorsee  sue  the  maker,  and 
fail  on  the  ground  that  the  note 
had  been  obtained  without  consid- 
eration, the  indorser  is  not  bound 
b}'  this  judgment  against  the  vali- 
dity of  the  note,  if  notice  was  not 
given  him  of  the  pendency  of  the 
suit.  But  the  indorser  may  show, 
in  bar  of  an  action  against  him  by 
the  indorsee  under  those  circum- 
stances, that  the  consideration  of 
the  note  was  a  good  one Ibid. 

7.  The  indorsee  of  a  note,  obtained 
from  the  maker  without  considera- 
tion, has  no  right,  as  soon  as  he 
discovers  the  imposition,  to  sue  the 
indorser  for  having  assigned  him 
a  note  which  the  maker  is  not 
liable  to  pay Ibid 

PURCHASER. 

See  Vendor  and  Purchaser. 

Q. 

QUIATIMET. 

See  Chancery  3. 

R. 
RECEIPT. 

See  Evidence,  7. 


(606) 


INDEX. 


510-511 


EECEIVING  STOLEN  GOODS. 

Indictment  for  receiving  stolen  jroods 
knowing  tlieni  to  be  stolen.  Held, 
that  the  time  and  place,  when  and 
wliere  the  goods  were  stolen,  need 
not  be  stated  in  the  indictment,  nor 
proved  at  the  trial.  —  Holfordv.  The 
Stale " 103 

RECOGNIZANCE. 

1.  The  surety  in  a  recognizance  be- 
fore a  justice  of  the  peace,  for  the 
principal's  appearance  at  the  Cir- 
cuit Court  to  answer  a  criminal 
charge,  can  not  discharge  himself 
by  a  surrender  of  his  principal  to 
the  justice. — Slegara  v.  The  State. 

■   104 

2.  The  surrender  in  such  cases,  ac- 
companied by  a  certified  copy  of 
the  recognizance,  may  be  made  to 
the  sheriff   Ibid. 

3.  A.,  B.  and  C.  entered  into  a  recog- 
nizance for  A.'s  appearance  on  the 
first  day  of  the  term  of  the  next 
Circuit  Court  to  answer  a  charge  of  j 
larceny.  On  the  first  day  of  the  • 
term  A.  failed  to  appear.  He  also 
made  default  on  the  second  day, 
when  the  recognizance  was  de- 
clared forfeited,  and  a  scire  facias 
issued  thereon  returnable  to  the 
next  term.  Plea  to  the  scire  facias, 
tiiat  no  pre.sentment  or  indictment 
had  been  found  against  A.,  thougli, 
since  the  date  of  the  recognizance, 
two  grand  juries  had  been  impan- 
eled. Held,  on  demurrer,  that  the 
plea  was  insufficient. — The  Slate  v. 
Cooper  et  at , 226 

4.  In  all  cases  in  which  the  state 
takes  an  obligation  from  an  indi- 
vidual for  the  performance  of  any 
duty,  it  should  be  by  recognizance, 
unless  the  law  otherwise  direct. — 
Dickerson  v.  Gray  230 

RECORD. 
See  Jury,  3,  13;   Oyer,  1,  2;   Pro- 
fert;  Vendor  and   Purch.aser, 
30. 

1.  Neither  the  capias  ad  responden- 
dum, nor  the  sheriflf"'s  return  on  it, 
can  be  noticed  by  this  Court,  un- 
less it  be  made  a  part  of  the  rec- 
ord in  some  wav  known  to  the  law, 
—Hays  V.  M' Kee 11 

2.  Neither  an  affidavit  for  a  contin- 
uance, nor  any  objection  of  a  party 
to  the  ordering  on  a  cause  iov  trial. 


is  any  part  of  the  record  unless 
made  so  by  a  bill  of  exceptions. — 
Wilson  V.  Coles 402 

RECORDS,  EL'RNED. 
In  order  to  have  a  judgment  re-en- 
tered, under  the  statute  of  1827  rel- 
ative to  the  burned  records  of 
Dearborn  county,  the  notice  to  the 
defendant,  which  answers  the  pur- 
poses both  of  a  writ  and  declara- 
tion, must  state  the  term  at  which 
the  judgment  was  originally  ren- 
dered.—  Weaver  v.  Bryan 172 

RELATION. 

See  Vendor  and  Purchaser,  16. 

RELATOR. 
See    Executors  and  Administra- 
tors, 9. 

RELEASE. 

See  Partnership,  5  ;  Pleading,  4, 
17;  Vendor  and  Purchaser,  14. 

An  agreement  under  seal  not  to  sue 
for  a  limited  time  can  not  be  plead- 
ed in  bar  as  a  release  :  the  defend- 
ant must  resort  to  his  action  on  the 
agreement. — Berry  v.  Bales 118 

RENT. 

See   Distress;    Execution,  2;   Re- 
plevin, 4,  5,  7,  9. 

REPLEVIN. 

See  Costs,  1 ;  Distress  ;  Judgment, 
6  ;  Right  of  Property,  Trial  of. 

1.  Replevin  lies  by  a  person  not  hav- 
ing the  actual  possession  of  the 
goods  when  taken,  provided  he 
have  at  tiie  time  the  general  prop- 
erty and  the  right  of  immediate 
pos.session. — Chinn  v.  FLiissell 172 

2.  Any  person,  except  the  execution- 
defendant,  may  have  replevin,  un- 
der our  stattite,  for  his  goods  taken 
in  execu t ion Ibid. 

3.  A  joint  execution  may  issue  against 
a  judgment-debtor  and  his  replevin- 
surety. —.irCo.y  et  al.  V.  Elder... IH3 

4.  If  an  action  of  replevin  be  brought 
for  taking  several  articles,  and,  on 
an  issue  as  to  the  plaintiff's  prop- 
erty in  them,  he  only  prove  him- 
self entitled  to  a  part,  the  defend- 
ant has  a  right  to  a  return  of  the 
others  and  to  damages  for  the  tak- 
ing of    them.     In   such    case  each 


(607) 


511-512 


IKDEX. 


party  succeeds,  and  each  is  entitled 
to  his  costs. —  Wright  v.  Mathews  et 
al 187 

5.  An  avowry  for  rent  due  need  not 
show  that  a  warrant,  founded  on 
oath,  liad  been  taken  out  before 
making  the  distress ;  nor  that  the 
goods  distrained  belonged  to  the 
tenant ;  nor  need  it  set  out  the  par- 
ticuhvrs  of  the  landlord's  title../6(V/. 

6.  A.  to  whom  B.  was  indebted,  levied 
an  attachment  on  certain  goods  as 
B.'s  property.  C,  the  owner  of  the 
goods,  brought  an  action  of  replevin 
against  A.  and  recovered. — Louis- 
ville and  Portland  Canal  Companij  v. 
Holborn 267 

7.  In  an  action  of  replevin  by  L. 
against  W.,  the  defendant  avowed 
the  taking  of  the  goods  as  a  dis- 
tress for  rent,  due  to  him  from  the 
plaintiff.  To  this  avowry,  the 
plaintiff  pleaded  non  tenuil  and 
riens  in  arrear.  Issues  were  joined 
upon  these  pleas.  There  was  a  ver- 
dict for  the  defendant  on  both  the 
issues  ;  the  jury  finding  the  amount 
of  rent  in  arrear,  but  not  the  value 
of  the  goods  distrained.  The  Coui't 
held,  that  the  commor.-law  judg- 
ment for  a  return  of  the  goods  to 
the  defendant,  and  for  his  costs  of 
suit,  might  be  rendered  on  this  ver- 
dict ;  but  that  there  could  be  no 
judgment  in  his  favor  for  the  ar- 
rears of  reni.—Larkinv.Wilburn. 

343 

8.  If  the  plaintiff,  in  an  action  of  re- 
plevin, be  non-suited,  he  is  not 
thereby  barred  from  bringing  an- 
other action  of  replevin  ;  the  merits 
of  the  cause  not  having  been  tried. 
This  is  the  common  law;  and  the 
statute  in  England  of  Ed.  I.,  pro- 
hibiting a  second  replevin  after  a 
nonsuit,  is  local  to  that  kingdom 
and  not  in  force  here. — Dag'jeti  v. 
Robins 415 

9.  The  action  of  replevin  is  not  lim- 
ited to  ca.ses  of  distress;  but  lies 
in  all  cases  of  a  tortious  and  un- 
lawful taking  and  detention  of 
goods  and  chattels Ibid. 

10.  Writs  of  replevin,  in  this  state, 
are  issued  out  of  the  Circuit  Court 
and  returned  thither  as  writs  in 
other  cases;  and  the  action  of  re- 
l)levin  is  proceeded  in  and  tried  as 
other  actions  are Ibid. 


REPLEVIN-BOND. 
See  Lien,  1. 

RESULTING-TRUST. 

See  Trust  and  Trustee,  1-3,  7,  8, 

10,  11. 

RETRAXIT. 

See  Nolle  Prosequi. 
An  attorney  at  law  has  no  authority 
to  enter   a  retraxit;    that  being  a 
perpetual    bar, — Lambert  v.   Sand- 
ford 137 

REVIVOR,  BILL  OF. 
See  Chancery,  25,  26. 

RIGHT  OF  PROPERTY,  TRIAL 
OF. 

Goods  found  in  possession  of  A.,  an 
execution-defendant,  were  levied 
on  by  the  sheriff.  B.  claimed  the 
goods  as  his,  and  a  jury,  summoned 
to  try  the  right  of  property,  found 
that  they  belongetl  to  A.  Held,  in 
replevin  by  B.  against  the  sheriff', 
that  the  finding  of  the  jury  was  not 
conclusive  against  B. —  Chinn  v. 
Russell "; 172 

S 

SALE. 

See  Vendor  and  Purchaser. 

SALE  FOR  TAXES. 
See  Vendor  and  Purchaser,  31,  32. 

SCIRE  PWCIAS. 
See  Bastardy.  1.  2;   Judgment,  1. 

SCROLL. 

See  Seal. 

SEAL. 

An  ink  seal,  commonly  called  a  scroll,- 

has  the  same  effect,  by  statute,  as 

if  it  were  made  witli  wafer  or  wax, 

—  Vanblaricum  elal.x.  Yen..: 322 

SE A T.OF  JUSTICE. 

1.  A  statute  authorized  the  re-loca- 
tion of  a  seat  of  justice  in  a  county, 
and  gave  to  the  owners  of  lots  in 
the  old  town,  after  the  re-location, 
on  their  comi)!ying  with  certain 
conditions,  a  right  to  a  conveyance 
by  the  county  agent  of  certain  lots 


(608) 


INDEX. 


512-513 


in  the  new  town  in  excliange  for 
theirs  in  the  old  one.  The  county 
accepted  the  statute,  and  the  seat 
of  justice  was  removed.  Held,  that 
the  owner  of  a  lot  in  the  old  town, 
having  performed  the  precedent 
conditions  prescribed  by  the  sta- 
tute, and  demanded  of  the  county 
.agent  a  conveyance  for  the  proper 
lot  in  the  new  town,  might,  if  the 
title  were  refused,  maintain  an  ac- 
tion of  assumpsit  against  the  Board 
of  Justices  for  a  breach  of  their 
contract,  implied  from  the  county's 
acceptance  of  the  statute. — Bkick- 
xcell  V.  The  Board  of  Justices  of  Law- 
rence County 143 

2.  Held,  also,  that  if  the  important 
facts,  .showing  the  cause  of  action, 
were  correctly  set  out,  the  declara- 
tion could  not  be  objected  to  on 
general  demurrer  on  account  of  its 
improper  conclusion,  that  the  plain- 
tiff ought  to  recover  the  value  of 
the  lot  in  the  new  town Ibid. 

3.  Held,  also,  that  the  value  of  the 
lot  in  the  old  town,  at  a  reasonable 
time  before  the  passage  of  the  stat- 
ute for  the  re-location,  was  the  real 
consideration  that  passed  from  the 
plaintiff  for  the  lot  in  the  new 
town;  which  consideration,  with 
interest  from  the  time  the  lot  in  the 
old  town  was  relinquished  to  the 
county,  was.  in  this  case,  the  meas- 
ure of  damages Ibid. 

4.  A  seat  of  justice  may  be  removed 
by  statute,  on  such  terms  as  the 
legislature  deems  reasonable;  and 
the  county,  having  accepted  and 
acted  on  the  statute,  is  bound  to 
comply  with  the  terms  imposed  on 
it  by  the  statute Ibid. 

SECURITY  FOK  COSTS. 
See  Bond,  10,  11. 

SEDUCTION. 

See  Marriage. 

SEISIX. 
See  Damages,  2 ;  Vendor  and  Pur- 
chaser, 20. 

SET-OFF. 
1,  A  debt  due  by  A.  and  B.  to  C.  can 
not  be  set  off,"  either  at  law  or  in 
equity,  against  a  debt  due  by  C.  to 
A.  alone. — Elder  v.  Lasswellet  al. 

349 

Vol.  II.— 39 


2.  There  is  no  difference,  on  the  sub- 
ject of  set-oft",  between  Courts  of 
law  and  equity ;  the  rule  is  the 
same  in  l)otii  Courts ...Ibid. 

SHERIFF. 

See  Bond,  3,  0,7 ;  Escape;  Evidence, 
9  ;  Execution;  Pleading,  12,  15  ; 
Right  of  Property,  Trial  of. 

1.  The  process  of  the  Supreme  Court 
is,  by  statute,  directed  to  the  sher- 
iff'of  that  Court,  who  receives  the 
same  and  forwards  it,  with  his  man- 
date, to  the  sheriff' of  the  county  in 
which  it  is  to  be  executed.  The 
sheriff  of  the  proper  county  makes 
his  return  to  the  sheriff  of  the  Su- 
preme Court,  and  the  latter  returns 
it  to  that  Court. — M'Gruder  v.  Rus- 
sell  ; 18 

The  general  doctrine  is,  that  a 
sheriff  is  liable  for  the  acts  of  his 
deputy.  But  as  the  authority  of 
the  sheriffs  of  the  several  counties 
to  execute  the  process  of  the  Su- 
preme Court  is  neither  conferred 
by  the  sheriff  of  that  Court,  nor 
subject  to  be  revoked  or  abridged 
by  him,  he  is  not  liable  for  their 
cond  net Ibid. 

3.  In  an  action  against  a  sheriff  for 
a  false  return,  the  execution  is  ad- 
mi.ssible  in  evidence,  though  it  do 
not  specify  the  day  on  which  it  is 
returnable. — Bosky  v.  Farquar  et  al. 

61 

4.  The  sheriff's  return  to  a  fieri  facias 
was,  that  he  had  not  levied  be- 
cause the  plaintiff'  would  not  give 
him  an  indemnity.  Held,  that  this 
return  was  unknown  to  the  law, 
and  that  the  cause  must  stand  as  if 
no  return  were  made Ibid. 

5.  Even  if  such  an  indemnity  could 
be  required  in  any  case,  it  siiould 
be  demanded  as  soon  as  the  circum- 
stances authorizing  the  demand 
were  known  to  exist Ibid. 

If  the  sheriff,  in  consequence  of 
vague  rumors  as  to  whether  certain 
goods  are  the  debtor's  or  not,  re- 
turn nulla  bona  without  having  the 
right  of  property  tried  by  a  jury, 
he  will  be  liable'for  a  false  return, 
'.n  proof  that  the  goods  were  sub- 
ject to  the  execution  Ibid. 

If  it  appear  that  a  person  has  acted 
generally  as  a  deputy  sheriff,  with 
the  sheriff's  knowledge  and  con- 
sent, the   sheriff'  is    liable   for   the 


513 


INDEX. 


official  acts  of  such  person,  though 
he  may  not  have  given  him   any 

express  au thori ty Ibid. 

8.  If  a  sheriff"  take  and  sell  the  prop- 
erty of  A.  on  an  execution  against 
B.  he  is  liable  to  the  owner,  in 
trespass  or  trover,  without  demand. 
— Jamison  v.  Hendrich 94 

SHERIFF'S  SALE. 
See  Execution;  Fraudulent  Con- 
veyance, 2, 4 ;  Fraudulent  Judg- 
ment; Vendor  and  Purchaser, 
1,  2,  4-8,  15,  22,  23,  25,  28,  29,  33, 
34. 

SIMILITER. 

See  Practice,  2. 

The  addition  of  the  similiter  is  only 

a  matter  of  form,  and  the  want  of 

it  is  aided  by  a  verdict. — Hays  v. 

M'Kee 11 

SLANDER. 
See  Malicious  Prosecution,  4. 

1.  In  a  prosecution  before  a  justice 
of  the  peace  for  an  assault  and  bat- 
tery under  the  statute  of  1818,  the 
defendant  was  found  guilty  by  the 
jury  and  fined  three  dollars.  An 
action  of  slander  was  afterwards 
brought  for  words  charging  the 
plaintiff'  with  having  sworn  false 
on  that  trial ;  and  the  words  were 
objected  to  as  not  being  actionable, 
on  the  ground  that  the  justice  had 
no  jurisdiction.  Held,  that  though 
the  statute  were  deemed  unconsti- 
tutional so  far  as  it  gave  the  jus- 
tice authority  to  inflict  a  fine  ex- 
ceeding three  dollars,  yet  when,  as 
in  this  case,  tlie  fine  inflicted  did 
not  exceed  that  sum,  the  objection 
was  untenable. —  Clark  v.  Ellis 8 

2.  Slander  for  charging  a  man  with 
illicit  intercourse  with  his  wife's 
sister.  Held,  that  the  words  did 
not  contain  a  charge  of  incest,  but 
only  of  fornication  or  adultery. 
Held,  also,  that  as,  at  the  time  of 
speaking  the  words,  neither  forni- 
cation nor  adultery  was  an  indict- 
able offence,  the  words  were  not  ac- 
tionable.— JDukesv.  Clark  20 

3.  Case  by  A.  against  B.  for  slander- 
ous words.  Plea  that  the  defend- 
ant had  heard  from  C.  the  charges 
mentioned  in  the  declaration,  and 
that  at  the  time  the  defendant 
spoke  the  words,  he  stated  that  C. 
had  teld  him  so.    Replication,  that 


the  defendant  had  spoken  and  pub- 
lished the  words  falsely  and  mali- 
ciously with  a  knowledge  that  they 
were  false,  and  with  the  intent  al- 
leged in  the  declaration.  Held,  on 
special  demurrer,  that  the  replica- 
tion was  good. —  Crane  el  ux.  v.  Doug- 


lass 


.195 


4.  An  action  of  slander  was  brought 
by  B.  against  M.,  for  words  charg- 
ing the  plaintiff' with  stealing,  and 
for  words  charging  him  and  his 
family  witli  murder.  The  defend- 
ant pleaded  not  guilty.  Held,  that 
words  charging  the  "  B.  family" 
witli  stealing,  or  with  murder, 
might  be  proved  by  the  plaintiff  to 
show  malice  ;  but  that  no  slander- 
ous words  spoken  of  the  plaintiff' 's 
wife  alone  were  admissible  as  evi- 
dence in  this  action. — M ' Glimmery 
v.  Brush 226 

5.  A  declaration  in  slander  charged 
the  defendant  with  having  said  that 
the  plaintiflT  had  sworn  false  on  a 
certain  trial  before  a  justice  of  the 
peace;  but  there  was  no  averment 
that  the  testimony  alleged  to  be 
false  was  material  Held,  that  the 
declaration  could  not  be  objected 
to,  after  verdict,  for  the  want  of 
that  averment. —  Wilson  v.  Harding. 

241 

6.  A  plaintiff  in  slander,  having  first 
proved  that  the  defendant  had  spo- 
ken to  third  persons  the  words  laid 
in  the  declaration,  may  prove,  in 
support  of  the  declaration,  that  the 
defendant  had  spoken  the  same 
words  in  answer  to  the  plaintiff's 
interrogatories. —  Gordmi  v.  Speticer. 

286 
SPECIFIC  PERFORMANCE. 

1.  A  bill  for  a  specific  performance  of 
a  contract  is  addressed  to  the  dis- 
cretion of  the  Court;  and  it  should 
always  show  that  the  complainant 
had  done  all  which  could  be  equi- 
tably required  of  him. — Dougherty 
V.  Humpston 273 

2.  When  a  conveyance  is  decreed  to 
be  executed  in  such  a  case,  the 
usual  form  is,  to  require  the  person 
who  has  the  legal  title  to  execute 
the  conveyance,  if  he  is  of  legal  dis- 
cretion and  within  the  jurisdiction 
of  the  Court Ibid. 

3.  A.  having  obtained  a  judgment 
against  a  county,  purchase'd  under 
an  execution  on  liie  judgment,  a 
number  of  town  lots  belonging  to 


(^01 


INDEX. 


513-514 


the  county.     Afterwards,  at  a  pub- 
lic sale  of  these  lots  by  the  county, 
B.  bought  one  of  them  for  a  small 
sum  with    notice  of  the    previous 
sale,  paid  the  purchase-money,  took 
a  receipt  for  tlie  same,  and  entered 
into  possession.     A.  died,  and  the 
county   made  a  compromise    with 
his  heirs,  who  released  their  inter- 
est in  the  said  lots  to  the  county, 
on  receiving  back   the   pui'chase- 
money  paid  by  A. ;  the  purchasers 
at  the  said  public  sale,  B.   among 
the  rest,  agreeing  by  parol  to  release 
tlieir  interest    in    the    lots  to    the 
county  on  being  re-paid  their  pur- 
chase-money.    The  county  tender- 
ed   to  B.    his  purchase-money  for 
the  lot  he  had  bought,  which  he 
refused  to  accept ;  and  he   refused 
also  to  execute  the  release.     C,  af- 
terwards, with  B.'s  knowledge,  and 
without  any  objection  by  B.,  pur- 
chased the  last-named   lot  of   the 
county,  and  received   a  deed   from 
the  county  for  the  same.     A  bill  in 
chancery,  filed  by   B.   against  the 
county  to  obtain  a  title  for  the  lot 
thus  bought  by  C.  was  dismissed  for 
want  of  equity.-</a(/Mes  v.  The  Board 
of  Commissioners  of  Vigo  Comity.AOS 
4.  Upon  an  application  to  a  Court  of 
equity,  for  a  specific  execution  of 
a  contract  for  the  sale  of  land,  the 
Court  must  be    satisfied    that   the 
claim  is  reasonable  and  just,  and 
the  contract  equal  in  all  its  parts, 
and  founded  on  an  adequate  con- 
sideration.    If  any  of  these  points 
he   not   established    by    the    com- 
plaint, he  will  be  left  to  his  remedy 
at  law. — Modisett  et  al.  v.  Johnson  et 
id 431 

SPIRITUOUS  LIQUORS,  RETAIL- 
ING OF. 

See  Indictment,  3. 

1.  The  fine,  on  a  conviction  of  retail- 
ing spirituous  liquors  without  a 
license,  belongs  to  the  county  for 
the  purpose  of  education;  but  this 
circumstance  need  not  be  stated  in 
the  judgment. —  Toumsend  v.  I' he 
Slate 151 

2.  A  license,  to  retail  spirituous  liq- 
uors for  three  months  was  granted 
by  the  board  of  county  justices.  The 
license,  as  appeared  on  its  face, 
had  been  granted  on  the  }>ayment 
of  fifty  cents.  Held,  that,  under  the 
statute,  no  license  to   keep  a  tav- 


ern or  to  retail  spirituous  liquors, 
could  be  granted  on  the  payment 
of  a  less  sum  than  five  dollars  ;  and 
that,  therefore,  the  license  in  this 
case  was,  prima  facie,  absolutely 
void Ibid. 

STATE. 
See  Bastardy,  1,3;  Costs,  3 

STATUTE. 

See  Decree,  2,  3 ;  Frauds,  Statute 
OF ;  Judgment,  1 ;  Limitations, 
Statute  of  ;  Seat  of  Justice. 

1.  A  statute  may  be  unconstitutional 
as  to  one  part  of  it,  and  valid  as  to 
the  residue. —  Clark  v.  Ellis 8 

2.  The  statutes  of  other  states  are  not 
noticed  by  our  Courts,  unless  they 
he  pleaded  and  proved. — Elliott  et 
ul.  v.  Ray 31 

3.  If  a  statute  be  repealed,  and  the. 
repealing  act  itself  be  afterwards 
repealed,  the  original  act  is  reviv- 
ed.— Due  d.  Wayman  v.  Naylor-..S2 

4.  The  act  of  1827,  giving  the  Su- 
preme Court  jurisdiction  in  certain 
cases  decided  by  the  Circuit  Court 
on  appeal  from  the  judgment  of  a 
ju.stice  of  the  peace,  is  prospective 
only,  and  does  not  apply  to  cases 
determined  by  a  justice  before  the 
taking  effect  of  the  act. — Maguire 
V.  Noivland  ;76 

5.  Statutes  enacted  at  the  same  session 
of  the  legislature  are  to  be  taken  in 
pari  materai,  and  should  receive  a 
construction  which  will  give  effect 
to  each  if  possible.  But  if  each  of 
them  can  not  have  the  same  entire 
effect  when  taken  in  connection 
with  the  others  that  it  would  have 
if  taken  singly,  tiiey  must  be  so  con- 
strued as  to  give  effect  to  what 
appears  to  have  been  the  main  in- 
tention of  the  legislature.  — TAe 
State  \.  RucUey  249 

SUBSCRIBING  WITNESS. 

See  Witness,  1,  2,  4, 

SUGGESTION  OF  BREACHES. 

See  Damages,  4,  7  ;   Justice  of  the 
Peace. 

suprejMe  court. 

See  Ekkor;  Escape,  1,  2,  Sheriff, 
1,2. 


(Gil) 


514-515 


INDEX. 


SURETY. 

See  Bond.  7,  8,  10, 11 ;  Evidence,  3, 
9 ;  Executors  and  Administra- 
tors, 1,6-9;  Justice  of  the  Peace, 
3 ;  Recognizance,  1-3 ;  Replevin, 
3. 

1.  The  single  fact  that  the  creditor 
has  taken  a  judgment  by  confes- 
sion from  the  principal  debtor,  with 
a  stay  of  execution  for  six  months, 
can  not  be  pleaded  by  the  surety 
in  bar  of  an  action  against  him  by 
the  creditor.  The  ])lea  in  such 
case,  to  be  valid,  must  also  show 
that  the  creditor  could,  by  the  or- 
dinary proceedings  at  law,  have 
collected  the  money  sooner  from 
the  principal  debtor  than  by  the 
course  which  he  had  pursued  ;  and 
that  the  time  was  given  to  the 
principal  without  the  surety's  con- 
sent.— Barkery.  M'Clure 14 

2.  In  a  suit  against  the  administra- 
trix of  A.  on  a  bond  in  which  he 
was  surety  for  B.  as  sheriff',  a  judg- 
ment previously  obtained  against 
B.  on  the  same  bond  is  inadmissi- 
ble as  evidence  for  the  plaintifT. — 
The  Governor  \.  Shelby ._ 26 

3.  If  the  administratrix,  being  sued 
on  the  bond,  had  given  notice  of 
the  pendency  of  the  suit  to  B.  and 
there  had  been  judgment  against 
her,  that  judgment  would  have 
been  conclusive  against  B.  in  a  suit 
against  him  by  the  administratrix. 

^  Ibid. 

SURRENDER. 
See  Recognizance,  1,  2. 

SWINDLING. 

See  Trespass,  5. 

T 

TAXES. 

See  Vendor  and  Purchaser,  31,  32. 

TEN. \  NT. 
See  Landlord  and  Tenant. 

TENDER. 
1.  A  tender  and  refusal  of  the  prop- 
erty (or  that  which  is  equivalent) 
at  the  time  and  ]>lace  fixed  by  the 
contract  for  its  delivery,  vests  the 
jiroperty  in  the  creditor;  and  puts 
an  end  to  his  right  to  sue  upon  the 
contract. — Mitchell  et  al  v.  Merrill. 


2.  The  plea  of  tender,  in  such  a  case, 
need  not  state  that  the  defendant 
was  afterwards  ready,  or  that  he 
brings  the  property  into  Court. 

rbid. 
TITLE-BOND. 

See  Chancery,  3,  1 2 ;  Company,  Un- 
incorporated ;  C  o  V  E  n  A  N  T,  7  : 
Damages,  2;  Disseisin,  1,4;  Dow- 
er, 2 ;  Ejectment,  4  ;  Mistake  ; 
Vendor  and  Purchaser,  3,  17- 
20,  33,  34. 

TRESPASS. 

See  Malicious  Trespass  ;  Pleading, 

10-12;  Sheriff,  8. 

1.  To  an  action  for  false  imprison- 
ment against  a  justice  of  the  peace 
and  a  constable,  the  defendants 
pleaded  in  justification  that  an  af- 
fidavit had  been  made  before  the 
justice,  charging  the  plainfift  with 
having  violently  assaulted,  lieaten 
and  wounded  the  deponent,  where- 
fore the  justice  had  issued  his  war- 
rant, Ac.  Held,  that  the  plea  was 
not  objectionalde,  after  a  verdict 
in  favor  of  the  defendants,  tor  not 
showing  that  the  assault  and  bat- 
tery were  charged  U>  have  l)een  nn- 
Imrfully  made. — Cooper  v.  Adams  et 
a/.'....'. 294 

2.  A  person  arrested  on  a  justice's 
Avarrant  for  a  breach  of  the  peace, 
can  not  maintain  an  action  of  false 
imprisonment  against  the  justice 
or  constable,  in  consequence  of  a 
mere  informality  in  the  warrant  • 
provided  the  justice  have  jurisdic- 
tion   Ibid. 

3.  If  a  judicial  officer,  whetlier  pos- 
sessed of  a  general  or  a  special 
jurisdiction,  act  erroneously  or  even 
oppressively  in  the  exercise  of  his 
authority,  an  individual  at  whose 
suit  he  acts  is  not  answerable,  as  a 
trespasser,  for  the  error  or  miscon- 
duct of  the  officer.  But  if  a  judi- 
cial officer  whose  jurisdiction  is 
special  and  limited,  transcend  his 
authority  and  act  in  a  ca.se  ot  which 
he  has  no  cognizance,  his  proceed- 
ings are  coram  von  judice,  and  no 
person  can  justify  under  ihem, — 
Taylor  \.  Moffat/ 305 

4.  The  defendant,  in  an  action  of 
false  imprisonment,  justified  under 
a  writ  of  attachment  ordered,  at 
his  instance,  by  a  Circuit  judge. 
The  writ  was    issued    against    the 


(612) 


INDEX. 


515-516 


plaintiff,  for  a  contempt  in  disobey- 
ing a  writ  of  injunction  granted 
by  the  judge.  The  injunction  was 
granted,  and  the  writ  of  attach- 
ment was  ordered  and  issued,  in 
vacation.  Held,  that  the  defence 
was  insufficient;  the  judge  having 
no  authority,  in  vacation,  to  order 

the  writ  of  attachment Ihid. 

6.  Trespass  and  false  imprisonment. 
Plea,  that  the  plaintiff,  by  his  false 
representations  respecting  the  cir- 
cumstances of  a  third  person,  had 
induced  the  defendant,  then  in  Lou- 
isiana, to  sell  there  on  a  credit  to 
such  tiiird  person  a  boat  laden  with 
corn;  that  the  plaintiff  and  the 
purchaser  absconded  without  pay- 
ing for  the  corn,  and  were  fugitives 
from  justice  ;  that  the  defendant, 
for  these  reasons,  made  oath  before 
a  justice  in  this  state,  that  the 
plaintiff  and  the  purchaser  had 
swindled  him  out  of  the  price  of 
Ills  corn  ;  that  a  warrant  for  swin- 
dling was  accordingly  issued  by 
the  justice  against  the  parties  com- 
plained of,  upon  which  the  plain- 
tiff was  arrested,  taken  before  the 
justice,  and  by  him  coumiitted  to 
gaol,  which  is  the  same  trespass, 
&c.  Held,  on  demurrer,  that  the 
plea  was  insufficient. — Hall  v.  Rog- 
ers  429 

TRESPASS  ON  THE  CASE. 
See  Vendor  and  Purchaser,  12. 

1.  A  declaration  contained  two  counts. 
The  1st  stated  that  the  defendant, 
on  his  unenclosed  land  in  the  co^uu- 
ty,  cut  a  tree  so  that  it  was  nearly 
ready  to  fall,  and  set  it  on  fire  ;  and 
that  the  tree  afterwards  fell  upon 
and    killed    the    plaintiff's  horse. 
The  2d  count  stated,  that  the  de- 
fendant,   knowing    the    plaintiff's 
horse  to  be  rinining  at  large  in  the 
unenclosed  lands  of  the  county,  and 
maliciously   contriving    to    injure 
the  plaintiff,  unlawfully  and  negli- 
gently cut  a  tree  in  the  county  and 
set  it  on  fire  ;  and  that  the  tree  af- 
terwards,   in    consequence    of    the  j 
cutting  and  burning,  fell  upon  and  \ 
killed  the  plaintiff 's  horse.     Held,  \ 
that  the  declaration  contained   no  i 
cause  of  action. —  Durliam  v.  Mus-  \ 
selman  96  j 

2.  When  an  action  on  the  case  is ! 
brought  for  fraud  in  the  breach  of  i 
a  contract,  the  gi-t  of  the  action  is 

(61 


the  fraud  committed  at  the  time  of 
the  breach  ;  and  if  the  plaintiff  can 
not  maintain  an  action  for  the 
fraud  committed  at  that  time,  no 
subsequent  damages  will  enable 
him  to  maintain  it. —  Cutler  v.  Cox. 

178 
TROVER. 

See    Pledge  ;   Sheriff,  8  ;  Vendor 
AND  Purchaser,  8. 

1.  The  plaintiff  may  recover,  in  tro- 
ver,for  the  injury  done. to  his  goods, 
as  well  as  for  their  value. — Jami- 
son V.  Hendricks  94 

2.  To  support  the  action  of  trover, 
the  plaintiff  must  prove  property 
and  the  right  of  possession  in  him- 
self, and  a  conversion  by  the  de- 
fendant.—  Picquel  V.  3I'Kay 465 

3.  If  the  defendant  has  a  lien  on  the 
goods  for  which  trover  is  brought 
against  him,  the  action  can  not  be 
sustained,  unlessa  tenderhave  been 
made  to  the  defendant  of  the 
amount  of  the  claim  Ibid. 

TRUST  AND  TRUSTEE. 

See  Parent  and  Child,  2. 

1.  A  trust  estate  in  real  property,  as 
separate  from  the  legal  ownership, 
may  either  be  credited  by  an  ex- 
press declaration  of  the  trust ;  or 
it  may  be  raised  upon  certain  facts 
by  implicatior  of  law. — Elliott  v. 
Armstrong 198 

2.  The  .statue  of  frauds  requires  all 
declarations  of  trust  in  land  to  be 
proved  by  written  testimony  ;  but 
tho.se  trusts  which  arise  by  the 
mere  operation  of  law,  are  except-, 
ed  out  of  the  statute  and  may  be 
proved  by  parol  evidence Ihid. 

3.  If  A.  purchase  land  with  his  own 
money,  and  the  deed  be  made  to  B.,  - 
a  trust  results  in  favor  of  A.,  pro- 
vided there  be  no  circumstances  in 
the  case  to  rebut  this  presumption 
of  the  law Ibid. 

4.  To  a  bill  in  chancery  by  the  gran- 
tee of  a  cestui  que  trust  against  the 
trustee  to  obtain  the  legal  title,  the 
grantor  need  not  be  a  party  either 
as  complainant  or  defendant.. /6iV/ 

5.  The  estate  of  a  cestui  que  trust  may 
be  sold  and  conveyed  by  him,  as 
well  as  any  other  estate  Ibid. 

6.  The  estate  of  a  bare  trustee  is  not 
subject  to  be  sold  on  an  execution 
against  him Ibid. 

7.  A  complainant  in  chancery   may 


516 


INDEX. 


prove,  by  parol  evidence,  in  order 
to  show  a  resulting  trust,  that  the 
purchase-money  for  real  estate  con- 
veyed to  another  was  paid  by  him- 
self, though  the  deed  state  that  the 
money  was  paid  by  the  grantee,  and 
the  answer  contain  a  denial  of  the 
trust Ibid. 

8.  The  trust,  in  real  estate  conveyed 
to  A.,  results  in  favor  of  B.,  in  con- 
sequence of  his  payment  of  the 
purchase-money,  is  a  kind  of  arbi- 
trary implication  raised,  to  stand 
until  some  reasonable  proof  be 
brought  to  the  contrary ;  and  if 
the  money  was  paid  for  the  express 
purpose  of  vesting  in  A.  both  the 
beneficial  and  legal  interest,  no 
trust  can  result  in  favor  of  B..Ibid. 

9.  A  trustee,  no  matter  how  or  from 
whom  he  derives  his  authority,  can 
not  purchase  the  trust-estate  so  as 
to  make  a  profit  to  himself.  He  is 
not  prohibited  from  purchasing; 
but  his  purchase,  when  made,  is 
for  the  benefit  of  the  cestui  que  trust, 
who  may,  if  he  apply  within  a  rea- 
sonable time,  have  a  re-sale.  If 
the  2:)roperty  be  ofTered  for  sale  a 
second  time,  and  there  be  no  ad- 
vance, the  trustee  is  held  to  his 
purchase. — Brackenridge  v.  Holland 
et  al 377 

10.  If  one  man  buy  land  with  his  own 
money,  and  take  the  deed  in  the 
name  of  another,  a  trust  results  by 
implication  in  favor  of  him  who 
paid  the  money. — Jenison  et  al.  v. 
Graves  et  al 440 

11.  The  existence  of  a  resulting  trust 
may  be  proved  by  parol  evidence, 
in  opposition  to  the  face  of  the 
deed  and  the  answer  of  the  trustee, 
but  to  establish  the  trust,  under 
those  circumstances,  the  clearest 
and  the  strongest  testimony  must 
be  produced Ibid. 

U 
USURY. 

See  Chancery,  1,  2. 


VARIANCE. 
Debt  on  a  writing  obligatory  for  the 
payment  of  one  hundred  and  twenty 
dollars.  The  declaration  set  forth 
the  sum  in  words  as  above.  The 
note,  when  produced  on  oyer, 
•showed  a  promise  to  pay  $120  ;  "the 

(in 


sum  being  expressed  in  figures. 
Held,  that  the  variance  was  imma- 
terial.— Lonyv.  Long ; 293 

VENDOR  AND  PURCHASER. 

See  Executors  and  Administra- 
tors, 19,  20 ;  Fraudulent  Con- 
veyance; Fraudulent  Judg- 
ment ;  Lis  Pendens  ;  Promissory 
Notes,  2  ;  Specific  Performance; 
Trust  and  Trustee. 

1.  The  real  estate  of  B.  was,  in  1823, 
sold  on  execution  under  a  judg- 
ment recovered  against  him  by  A. 
in  1822,  which  judgment  had  not 
been  replevied.  A.,  the  execution- 
plaintifl,  was  the  purchaser  for  565 
dollars.  The  property  sold  had 
been  appraised,  under  the  statute 
of  1820,  at  4,640  dollars.  In  eject- 
ment by  A.  for  the  premises,  it  was 
held  that  no  bid  for  the  land  could 
be  made  under  the  statute  of  1820, 
for  less  than  2,320  dollars,  the  one- 
half  of  the  appraised  value ;  and 
that  the  .sheriff's  sale  therefore  for 
565  dollars  was  void,  and  his  deed 
conveyed  no  title  to  the  purchaser. 
— Harrison  el  al.  v.  Doe  d.  Rapp...l 

2.  If  the  purchaser  of  real  estate  at 
sheriff's  sale  be  the  execution-plain- 
tiff, he  is  considered  a  purchaser 
with  full  notice,  and  accountable 
for  all  irregularities Ibid. 

3.  Debt  by  the  assignee  of  a  sealed 
note  for  the  payment  of  money 
against  the  maker.  The  note  was 
dated  on  the  10th  of  June,  1817, 
and  payable  on  or  before  the  1st 
of  December,  1818.  Plea,  that  the 
note  was  given  to  the  payee  for  the 
purchase-money  of  a  certain  tract 
of  land  wliich  he  represented  to  be 
his,  and  for  which  he  was  to  make 
a  title  to  the  defendant  when  the 
note  should  be  paid  ;  that  the  payee 
never  had  a  title  to  any  part  of  the 
land  ;  and  that,  at  the  time  of  the 
plea,  he  was  insolvent  and  had  ab- 
sconded from  the  state.  Held,  that 
the  plea  was,  under  the  statute,  a 
good  bar  to  the  action. —  Davis  v. 
Clements' 3 

4.  By  the  statute  of  1817, 'real  estate, 
might  he  sold  on  an  execution  of 
fieri  facias,  without  an  inquiry  as 
to  the  value  of  the  rents  and  profits, 
or  a  venditioni  exponas  ;  unless  the 
execution-defendant  required  an 
inquest. — Doed.Wayman  v.  Sai/lor. 

■  33 

4) 


INDEX. 


516-517 


5.  The  statute  of  1821  Mipplied  an 
omission  in  that  of  1817,  by  author- 
izing a  venditioni  exponas  and  sale 
of  land,  where  the  rents  and  profits 

,  had  been  ofiered  for  sale,  but  would 
not  bring  a  sufficient  sum  to  pay 
the  debt Ibid. 

6.  A  venditioni  exponas  was  not  ne- 
cessary, under  the  statute  of  1817, 
except  in  cases  where  there  had 
been  an  inquest  Ibid. 

7.  By  the  statute  of  1810,  an  inquest 
and  venditioni  exponas  were  neces- 
sary without  request  Ibid. 

8.  A  horse  which  was  the  property 
of  A.  was  purchased  by  B.  at  a 
sheriff's  sale  on  an  execution 
against  C.  After  B.  had  sufficient 
reason  for  believing  the  horse  to 
be  A.'s  property,  he  exercised  acts 
of  ownership  over  him,  and  made 
use  of  evasive  measures  to  prevent 
A.  from  obtaining  him.  Held,  that 
A.  might  recover  in  trover  for  the 
horse  against  B.,.without  proving  a 
demand  and  refusal. — Jamison  v. 
Hendricks  94 

9.  A.  filed  a  bill  in  chancery  against 
B.,  the  heir,  and  C,  the  adminis- 
trator of  D.,  stating  that  the  com- 
plainant had  sold  and  conveyed  a 
lot  of  ground  to  D.  without  receiv- 
ing the  purchase-money,  and  that 
D.  had  died  insolvent.  Prayer  that 
the  lot  might  be  sold  to  pay  the 
purchase-money.  An  order  of  pub- 
lication was  made  as  to  the  heir, 
who  was  a  non-resident.  The  ad- 
ministrator filed  an  answer  and 
cross-bill,  stating  that  the  convey- 
ance, though  absolute  on  its  face, 
was  intended  as  a  mortgage  to  se- 
cure the  payment  of  a  debt  due 
from  A.  to  D.,  and  praying  a  sale 
of  the  lot  to  pay  the  debt. 

Held,  1st,  that  there  could  be  no  de- 
cree for  the  complainant  without 
proof  that  the  order  of  publication, 
as  to  the  heir,  had  been  made.  2d, 
that  parol  evidence  of  the  com- 
plainant's admissions  as  to  the 
deed's  being  intended  to  be  a  mort- 
gage, should  be  received  with  great 
caution;  and  ought  not,  where  there 
are  circumstances  raising  a  con- 
trarv  presumption,  to  be  permitted 
lo  control  the  deed. — Abern  v.  Biir- 
nett  ei  al 101 

•  10.  To  a  debt  on  a  writing  obligatory 
for  the  payment  of  money,  the  de- 
fendant pleaded  that  the  obligation 


had  been  given  for  a  pair  of  mill 
stones,  fraudulently  represented  to 
be  good,  but  which  were  of  no 
value. 
Held,  that  in  this  case,  and  in  that 
of  a  breach  of  warranty,  if,  in  ad- 
dition to  the  fraudulent  represen- 
tations, or  to  the  breach  of  war- 
ranty, the  defendant  prove  that  the 
article  is  of  no  value,  or  that  it  has 
been  returned  or  tendered  within  a 
reasonable  time,  he  defeats  the 
action  but  if  it  appear  that  the 
article  is  of  some  value  and  has 
not  been  returned  or  tendered,  the 
plaintiff  recovers  the  value. —  Wynn 
et  al.  V.  Hiday 123 

11.  Qucere,  whether  A.'s  unconditional 
possession  of  goods  which  had  been 
sold  by  him  to  B.,  renders  the  sale 
per  se  fraudulent  and  void,  or  is 
only  evidence  of  fraud,  as  to  A.'s 
creditors. — Chinn  v.  Russell 172 

12.  In  the  sale  of  goods  with  an  ex- 
press warranty  as  to  their  quality, 
assumpsit  lies  for  the  breach  of 
contract  not  under  seal,  or  case 
lies  for  the  commission  of  the  tort. 
So,  if  an  injury  be  occasioned  by 
the  negligence  of  an  attorney,  or  of 
a  stage  proprietor,  assumpsit  lies  on 
the  undertaking  or  case  upon  the 
duty. — Cutler  v.  Cox 178 

13.  A.  contracted  to  sell  to  B.  certain 
real  estate,  in  consideration  that 
B.  should  give  up  a  note  held  by 
him  against  A.,  and  pay  to  A.  a 
small  sum  of  money.  The  giving 
up  of  the  note  to  A.  was  the  prin- 
cipal part  of  the  consideration.  B. 
subsequently  pledged  the  note  to  a 
third  person,  and  absented  himself 
from  the  country  for  seven  years, 
without  paying  any  part  of  the 
purchase-money.  Held,  that  A.  was 
discharged  from  the  contract.— £/- 
liott  v.  Armstrong 198 

14.  A  release,  by  the  grantee,  of  the 
covenant  of  warranty  contained  in 
a  conveyance  of  real  estate,  does 
not  affect  the  validity  of  the  con- 
veyance  "^y'- 

15.. The  sale  of  real  estate  on  a  void 
execution  is  a  nullity,  and  vests  no 
title  in  the  purchaser I^f^i'l- 

16.  A.  made  a  verbal  contract  for  the 
purchase  of  a  town  lot,  and,  during 
A.'s  absence  from  the  country,  B., 
partly  with  his  own  money,  but 
principally  with  A.'s  properly ,com- 
pieted  the  contract  for  \.,  and  took 

15) 


i)i7-518 


li^DEX. 


the  deed  in  the  name  and  for  the 
benefit  of  A.  Held,  that  A.'s  sub- 
sequent ratification  of  B.'s  acts, 
made  him  liable  to  B.  for  the 
amount  paid  for  him  by  B. ;  and 
also  rendered  the  lot  as  A.'s  prop- 
erty liable,  from  the  date  of  the 
deed,  to  a  judgment  against  him  in 
favor  of  B !f>id. 

17.  In  an  action  on  a  title-bond  con- 
ditioned to  make  a  deed  for  real 
estate  on  payment  of  the  purchase- 
money,  the  declaration  averred  a 
payment  of  the  money  and  a  fail- 
ure to  m;ike  the  deed.  Plea,  that, 
before  the  commencement  of  the 
suit,  the  defendant  had  tendered 
the  deed,  which  was  refused  ;  that 
he  had  always  been  ready,  and  was 
still  ready,  &c.  Held,  on  demur- 
rer, that  the  plea  was  good ;  it  not 
appearing  but  that  the  payment 
was  made  on  the  day  the  deed  was 
tendei-ed. — Gulletly  v.  The  Board  of 
JiiSi  ices  of  Oiven  County 221 

18.  If  the  owner  of  real  estate  cove- 
nant to  make  a  title  to  it  on  pay- 
ment of  the  purcha.se-money,  and 
the  same  be  afterwards  paid,  the 
obligor  is  not  liable  to  an  action 
for  not  conveying,  unless  the  deed 
have  been  previously  demanded. — 
Sheets  V.  Andrews 274 

19.  Qucere,  whether  the  purcha.ser,  in 
such  case,  .should  tender  the  deed 
to  the  vendor  for  execution /6('(/. 

20.  In  the  case  of  a  breach  of  the 
covenant  of  seisin,  or  of  warranty, 
contained  in  a  conveyance  of  real 
estate,  or  of  a  breach  of  a  covenant 
to  convey,  the  measure  of  damages, 
if  there  be  no  fraud,  is  the  purchase- 
money  with  interest   Ibid. 

21.  Debt  on  bond  for  the  payment  of 
money.  Plea,  that  the  obligation 
had  been  given  to  the  plaintiff  in 
part  payment  of  a  tract  of  land 
purchased  of  him  by  the  defend- 
ant, which  land  had  been  previous- 
ly devi.sed  to  the  plaintiff;  that 
the  plaintiff  knew  of  the  will,  and 
had  had  it  under  his  control,  for 
three  years  next  ensuing  the  testa- 
tor's death,  but  had  not,  within 
tliat  time,  caused  the  same  to  be 
proved  and  recorded.  Held,  on  de- 
murrer, that  the  plea  was  insuffi- 
cient.—Lon^  v.  Lonr/ 293 

22.  The  reversal  of  a  judgment  on 
error,  after  a  sale  of  land  under  it 
on   execution,  does    not    affect  the 


purchaser's  title. — Frakes  v.  Brovm. 

295 

23.  A  purchaser  of  land  at  sheriff's 
sale  is  not  obliged  to  show  that  the 
debtor  had  not  personal  property 
to  satisfy  the  judgment.  It  is  only 
necessary  for  him  to  show  the  judg- 
ment of  a  competent  Court,  and  the 
kind  of  execution  which  authorizes 
the  sheriff  to  sell.  He  has  a  right 
to  presume  that  all  the  intermedi- 
ate proceedings  are  correct Ibid. 

24.  During  the  pendency  of  a  peti- 
tion for  a  divorce  and  alimony,  the 
Court  may  make  an  order  on  the 
defendant  requiring  him  not  to 
dispose  of  any  of  his  real  or  per- 
sonal property  ;  but  the  purchaser 
of  real  estate  from  the  defendant 
will  not  be  affected  by  the  order, 
unless  he  have  actual  notice  of  its 
existence  ;  the  pendency  of  the  suit 
and  entry  of  the  order  not  being 
sufficient  of  themselves  to  avoid 
the  conveyance Ibid. 

25.  The  purchaser  of  real  estate  at 
sheriff's  sale  may  obtain  a  decree 
setting  aside  a  deed  which  had 
been  made  to  defraud  the  judg- 
ment-creditor, and  securing  the 
purchaser's  title  against  any  claims 
under  the  fraudulent  deed  ;  but  the 
decree  can  not  vest  the  absolute 
fee  in  the  complainant  Ihid. 

26.  The  right  of  the  owner  of  real 
estate  to  carry  on  trade  there  to 
the  exclusion  of  all  others,  can  not 
be  made  the  subject  of  a  separate 
conveyance,  so  as  to  prevent  a  sub- 
sequent holder  of  the  property, 
without  his  own  agreement,  from 
pursuing  his  lawful  business  there. 
—  Taylor  V.  Owen  et  al 301 

27.  Same  point  decided. —  Taylor  v. 
Moffatt  et  al 304 

28.  If  a  purchaser  of  real  estate  at 
sheriff's  sale  refuse  to  pay  the  pur- 
chase money,  and  the  property  be 
sold  for  a  less  sum  at  a  second  sale, 
the  liability  of  the  first  purchase', 
for  the  difference,  under  the  statute 
of  1825,  may  be  established  by 
parol  evidence. —  Cmvgill  v.  Woodni. 

332 

29.  The  sheriff  is  not  obliged  to  take 
the  mere  word  of  any  person,  who 
may  bid  at  a  sheriff's  sale,  that  he 
is  .the  agent  of  the  execution-cred- 
itor   Ibid. 

30.  A  subsetpicnt  conveyance  of  real 
estate,  although  first  recorded,  will 

0) 


INDEX. 


518-519 


not  prevail  against  a  prior  one 
which  is  not  recorded  until  after 
the  expiration  of  the  time  pre- 
scribed by  law,  if  the  subsequent 
purchaser  had  actual  notice  of  the 
prior  conveyance. — Ricks  v.  Doe  d. 
Wright 346 

31.  If  the  sale  of  town  lots  for  taxes 
was  authorized  by  the  revenue  act 
of  1818  (which  is  doubtful),  the 
validity  of  a  sale  under  the  act  can 
only  be  established  by  legal  proof 
that  the  law  had  been  strictly  com- 
plied with. — O'Brien  et  al.  v.  Coul- 
ter el  al 421 

32.  Two  town  lots,  one  with  a  house 
on  it,  the  other  unimproved,  worth 
400  or  500  dollars,  were  sold  to- 
gether for  a  tax  of  4  dollars.  Held, 
that  the  sale  under  those  circum- 
stances was  illegal Tbid. 

33.  A  judgment  is  no  lien  on  land, 
which  the  debtor  holds  by  a  bond 
conditioned  for  the  execution  of  a 
title  on  payment  of  the  purchase- 
money,  thougli  he  had  taken  pos- 
session and  paid  the  money  before 
the  rendition  of  the  judgment ;  and 
a  sheriff's  sale,  on  execution 
against  the  obligee,  of  land  so  held, 
conveys  no  estate  to  the  purchaser. 
— Modisett  et  al  v.  Johnson  et  a/ ..431 

34.  The  statute  of  frauds,  authoriz- 
ing the  sale  of  lands  on  execution 
against  a  cestui  que  trust,  does  not 
extend  to  the  equitable  interest 
possessed  by  the  obligee  of  a  title- 
bond  Ibid. 

VENUE. 
See  Error,  1 ;  Pleading,  5,  11. 

VERDICT. 
See  Executors    and    Administra- 
tors, 12,22  ;  Forcible  Entry  and 
Detainer,  2  ;  Jury,  3-7, 13  ;  Re- 
plevin, 7 ;  Similiter. 

VIDELICET. 
See  Plea DiNO,  9. 

VOIRE  DIRE. 
See  "Witness,  3. 

W. 
WAIVER. 

See  Lien,  2. 
The  defendant,  by  pleading   to    the 
action,  waives  all  objection  on  ac- 


count  of   the   want   of  process. — 
HaysY.M'Kee 11 

WARD. 

See  Guardian  and  Ward. 

WARRANT. 

See  Constable. 
The  warrant  of  a  justice  of  the  peace, 
on  a  charge  of  an  assault  and  bat- 
tery, commenced  as  follows  :  "  The 
state  of  Indiana,  Allen  county,  ss: 
To  William  Brown,  constable  of 
Adams  township,  greeting."  Held, 
that  no  objection  could  be  made  to 
the  warrant,  on  account  of  its  not 
repeating,  in  the  mandatory  part 
of  it,  the  name  of  the  state. — Cooper 
V.  Adamset  al 294 

WARRANTY. 

See  Damages,  3 ;  Vendor  and  Pur- 
chaser, 10, 12,  14,  20. 

WILL. 

1.  A  testator,  commencing  his  will 
by  expressing  an  intention  to  dis- 
poseof  all  his  worldly  estate,devised 
to  his  wife  all  his  lands  and  tene- 
ments for  life,  together  with  all 
his  household  goods  and  chattels. 
If  his  wife  married  again,  she  was 
still  to  enjoy  the  real  estate,  but 
without  power  to  dispose  thereof 
except  by  leasing  it  for  a  term  not 
exceecJing  one  year  at  a  time.  If 
she  married  and  died  without  is- 
sue, the  real  estate  was  to  descend 
to  a  nephew  of  the  testator;  but  if 
she  had  issue,  the  estate  was  to  de- 
scend to  such  issue.  The  testator 
died,  having  made  no  further  dis- 
position of  his  property,  and  leav- 
ing no  children.  On  a  claim  by 
the  testator's  brothers,  his  heirs  at 
law,  held,  that  all  the  personal  es- 
tate, including  moneys  and  obliga- 
tions, passed,  by  tiie  will,  to  the 
widow  of  the  deceased. — Lutz  et  al. 
V.  Lutz 72 

2.  The  construction  of  a  will  depends, 
not  so  much  upon  any  rigid  prin- 
ciple of  law,  as  upon  what  appears 
by  the  will  to  have  been  the  testa- 
tor's intention Ibid. 

3.  A  will,  after  directing  the  personal 
estate  to  be  sold,  and  that  the  real 
estate  leased  until  the  rents,  with 
the  proceeds  of  the  sale  of  the  per- 
sonal property,  should  be  sufficient 


(617) 


519 


INDEX. 


to  pay  the  after  named  legacies, 
contained  the  following  provision  : 
"  I  will  and  bequeath  to  my  sister 
Isabel  the  sum  of  50  dollars  annu- 
ally, to  be  paid  out  of  the  rents  of 
the  place  and  the  proceeds  of  the 
sale  of  my  personal  property,  and 
continued  until  the  following  sums 
are  paid."  The  will  then  gave  sev- 
eral legacies,  and  directed  that, 
after  their  payment,  the  real  estate 
should  be  sold  and  a  distribution 
made. 
Held,  that  in  each  year  the  50  dollars 
were  to  be  paid  to  Isabel,  before 
any  payment  to  the  other  legatees, 
— Parks  V.  Perry 74 

4.  Held,  that,  by  the  statute  law  of 
this  state,  a  will,  devising  real 
estate,  must  be  in  writing,  signed 
by  the  testator,  and  attested  by  two 
credible  witnesses  in  presence  of 
the  testator;  and  that  it  may,  in 
the  same  manner,  be  revoked. 
Held,  also,  that  a  will  in  such  a 
case  as  well  as  a  revocation,  is 
valid  without  being  sealed. — Doe 
d.  Knupp  et  vx.  v.  Patlison  et  o/...355 

5.  If  land  devised  be  afterwards  sold 
by  the  devisor  to  a  stranger,  the 
devisee  takes  nothing  by  the  de- 
vise.— Raburn  v.  Shortridge 480 

WITNESS. 
See  Bond,  6;   Chancery,  17;   Evi- 
dence, 10, 1.3  ;  Practice,  5. 
1.  One  of  two  subscribing  witnesses 
to  a  bond  being  called  to  prove  its 
execution,   denied    his    signature. 


Held,  that  the  other,  if  he  could  be 
procured,  should  be  examined  ;  but 
if  he  could  not  be  found,  secondary 
evidence  might  be  resorted  to. — 
Booker  V.  Bowles  90 

2.  If  a  subscribing  witness  deny  his 
signature,  the  case  stands  in  the 
same  situation  as  if  his  name  were 
not  on  the  instrument Ibid. 

3.  If  a  witness  be  objected  to  as  in- 
terested, and  his  interest  be  proved 
by  other  witnesses,  the  party  call- 
ing the  witness  has  no  right  to  ex- 
amine him  on  his  voire  dire ;  that 
right  belonging  alone  to  the  party 
who  makes  the  objection. —  Wright 
V.  Mathews  et  al 187 

4.  The  subscribing  witness  to  a  deed 
resided  in  Ohio,  and  the  acknowl- 
edgment had  been  taken  there  be- 
fore the  mayor  of  Cincinnati.  Held,' 
that  the  deed — on  proof  that  the 
grantor  had  executed  it,  and  that 
the  witnesses  had  subscribed  it,  in 
the  presence  of  the  witness — was 
admissible  in  evidence. —  Ungles  v. 
Graves 191 

5.  No  confession  of  interest  made  by 
a  witness,  after  a  party  is  entitled 
to  his  testimony,  can  render  him 
incompetent. — Sims  el  al.  v.  Givan. 

461 

6.  To  exclude  a  witness  on  the  ground 
of  interest,  he  must  appear  to  be 
interested  in  favor  of  the  party  who 
calls  him  Ibid. 

WRIT  OF  INQUIRY. 
See  iNQtriRY,  Wsir  of. 


END  OF  VOL.  n. 


V 


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